Local Government Bill [H.L.] (Hansard, 1 February 2000)

HL Deb 01 February 2000 vol 609 cc77-132 77

§ 3.9 p.m.

§ The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

§ Moved, That the House do now again resolve itself into Committee.—(Lord Whitty.)

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The CHAIRMAN OF COMMITTEES in the Chair.]

§ Lord Dixon-Smith moved Amendment No. 87:

§ Before Clause 12, insert the following new clause—

§ LOCAL AUTHORITY EXECUTIVE: RESPONSIBILITY FOR FUNCTIONS

§ (" .—(1) This section makes provision about the way in which, under executive arrangements, a local authority executive which takes the form specified in either section 10(2) or (3) or (4) above is to be responsible for its functions.

§ (2) The decisions, proceedings, reports and documents of the executive shall be subject to the provisions of the Local Government (Access to Information) Act 1985.

§ (3) No function may be discharged by or on behalf of the executive unless an officer appointed by the head of paid service of the authority is present to record the decision, those present taking the decision and to record any advice given or relevant background papers.

§ (4) No decision which would result in expenditure may be taken unless it is consistent with a scheme of delegation approved by the authority.

§ (5) All records about decisions of the executive shall be reported to the next meeting of the Council.").

§ The noble Lord said: It will become a fact of life that a local authority that chooses to run its affairs through executive arrangements will discover, certainly initially and perhaps always subsequently, that the executive of the authority is clearly under the public eye. It must create great public interest. In future, if the executive chooses to adopt executive arrangements that will be the body or group of people who undertake most of the actions on behalf of the particular local authority concerned. That being so, it is inevitable that one would wish to see the highest standards of probity, openness, and security of the public interest by that body. The interests of the staff of the authority need also to be protected. If the executive were to behave in the least way in an improper fashion, that would not help the staff's good reputation.

§ I believed it necessary, therefore, to table Amendment No. 87. I am pleased that government Amendment No. 151 is grouped with it. While that amendment does not cover the same points as Amendment No. 87, it is directed towards the same intentions. The subject is further confused. In order to find out what is to happen one has to refer to draft regulations. I emphasise that those are in draft form and not regulations. Therefore the issue is not straightforward.

§ I am pleased to find—it occurs from time to time and is always a pleasure—that the principles which persuaded me to table the amendment are those which the Government accept and agree with. I hope that I may be permitted a slightly tart comment: that it would have been better if neither the Minister nor I had had to put forward an amendment on the subject. The provision could have been in the original Bill.

§ I look forward to hearing the Minister's remarks on the government amendment. I beg to move.

§ 3.15 p.m.

§ Baroness Hamwee
I had expected the Minister to leap in to defend the Government's position by speaking to his amendment. He indicates that he gives way.
Amendments Nos. 129 and 130 which stand in my name are grouped with Amendment No. 87. I suspect that the real debate needs to be on government Amendment No. 151, which stands more than a sporting chance or appearing in the final version of the Bill rather than the amendments in my name and that of the noble Lord, Lord Dixon-Smith. Therefore, I shall comment on that amendment first.
We welcome a government amendment on access to meetings and provision of information. However, I confess that I would wish the Government's new clause to go somewhat further. Chapter 13 of the guidance on accountable decision making is passionate in its advocacy of transparency and accountability—and who could argue with that? It also comments that the traditional access to information provisions require material to be available only three days before the date of the relevant meeting. The draft guidance describes the desirability of wide consultation before decisions are made. Again, I do not quarrel with that. I am concerned, however, that in most cases it will be voluntary good practice rather than a statutory right for citizens or other members of the authority.
I am particularly concerned about the provision in paragraph (a) of the proposed new clause which provides for there to be regulations about, access of the public to meetings of executives or committees … (including provision enabling such meetings to take place in private)". The obvious implication is that executives can choose to meet in private and that there will not be prior access to information but that decisions will be provided to be published as soon as practicable after the meeting. We see that language from the Government. There has been much talk about recognising that an executive will at times choose to meet in private. The truth is that one can never avoid off-the-record discussions between members of an executive or any group which chooses to talk privately beforehand. We on these Benches feel strongly that the Bill should go as far as possible in a direction other than that of enshrining private meetings as part of a formal process. Information must be made publicly available at a stage when an input can be made by members of the public, interest groups and other councillors.
My noble friend Lady Thomas of Walliswood spoke at an earlier stage about the importance of councillors who are not part of the executive or administration making their contribution to the processes of local authority. She spoke powerfully—and may choose to do so again today—about the importance of information being made available to back benchers. Many of us have sought to avoid using that term because it seems a little pejorative although that is not the intention. Back benchers, in particular those of the party running the local authority, need their 80 opportunity to make a constructive input. Today may not be the day to choose the term "a critical friend of the administration" but that is the role of many back benchers. That is how they like to view it. We welcome such a provision and hope to strengthen the Bill in order to contribute to the development of scrutiny, enhance the role of non-executive members, public participation and consultation and real freedom of information, and bring about the improved ethics and probity that we all seek.
The two amendments in the group would strengthen the requirements on access to information and decision-making. The first would maintain current levels of openness by applying the 1972 Act. Although there would be no restriction on members of the executive holding discussions in private, the amendment recognises that formal decision-making should be in public. The second amendment provides for agendas and papers to be published in advance, and for there to be advance notice of decisions. I look forward to hearing the Minister's explanation of his amendment.

§ Lord Whitty
I apologise to the noble Baroness, Lady Hamwee, if she thought that I would speak before her. I thought that it would be for the convenience of the Committee if I heard debate on the other two amendments and therefore could place my amendment in context. I shall speak to that amendment and pick up some of the points raised.
The Government's starting point is that to be transparent and accountable a council's decision-making arrangements need to satisfy a number of fundamental principles. The first is that a council's policy development must be inclusive and involve the key stakeholders, and so forth. Secondly, the community needs to be able to make its input into the decision making. Thirdly, and most importantly in this context, local people need to know who are the decision takers, what those decision takers plan to do, what they have done, and why they have done it. Amendment No. 151 meets those criteria.
The right approach when judging whether decision-making arrangements are transparent and accountable is to look at how they meet those principles in practice. Although there has been some formality of openness in the past, it has not in all cases met the principles of transparency and accountability. Traditional arrangements do not meet them. Committee meetings are in public, but frequently that is not where decisions are made. Local people can be present but that does not mean they know who is the real decision taker.
Under the present system, papers must be presented to a committee three days in advance, but that is no substitute for the proper involvement of local people. Minutes are made available after the meeting but there is no way of scrutinising them and getting behind the formal decisions. Access to papers and minutes rarely helps to identify the real issues.
The present structure can embrace committees that do a good job of meeting transparency and accountability and go beyond the minimum in 81 providing information to the public and interest groups. The new executive arrangements will provide the clarity, transparency and accountability that we all want and are set out in Chapter 13 of the draft guidance. They include an inclusive process of formulating the policy framework and budget; publicly known and identified individuals who are personally responsible for implementing the details of that framework and budget; accurate recording of decisions and reasons; timely publication of those reasons and of the background and factual papers available to decision makers; and the powerful overview and scrutiny committees—which will meet in public and discuss and make recommendations on policies, holding each executive member to account for that which he or she has done or is planning to do.
Those arrangements will open the door to a wider form of democracy and a greater degree of information for the public. The executive will make clear from the outset what it plans to do, who on the executive will take particular decisions and how it is intended to involve others in those decisions. There will be dialogue between members of the executive and the relevant overview and scrutiny committees. The public and local people, through those committees, will have a guarantee of knowing the executive's plans, what it is doing, and what it has done and why.
Amendment No. 151, together with the guidance, allows those arrangements to be implemented. Coupled with Clause 15 on the role of overview and scrutiny committees, the amendment should lead to proper transparency and accountability. The amendment, taken together with the draft guidance, meets those objectives but the three Opposition amendments would not. They are closer to replicating the access to information regime that applies to the current committee system, which misses the point. An executive is not the same as a small committee but comprises several people who, individually and personally, have responsibility for delivering aspects of the council's agreed policies.
An executive will of course discuss many issues but final responsibility for a decision will often rest with an individual, particularly where there is a directly elected mayor but also in other models of executive structure. The individual will be responsible to the overview and scrutiny committees in terms of what was available before making a decision, why the decision was made and the decision itself. Such decisions may frequently be made in their final form by the executive in private but the background, responsibility and precise form of decisions will be subject to public scrutiny. Amendment No. 151 covers that objective in a way that the other amendments do not fully address.
82 Although there is some overlap of what is desired by members of both Opposition Front Benches, their amendments address something more akin to the present situation than the new structure, so I hope that they will not press their amendments.

§ Lord Woolmer of Leeds
I agree with my noble friend that the new structures and the distinction between executive responsibility, scrutiny and overview are more radical than the Opposition amendments. My noble friend's approach offers a more substantial way forward.
There is a need for a considerable degree of openness and transparency in decision-making and accountability. My noble friend's way forward is a new regulatory-making power to deal with access of information, rather than put those principles in the Bill. The Government may take the view that provisions requiring detailed amendments to existing legislation are best be dealt with by regulation. However, there is a case for ensuring that enhanced accountability is enshrined in the Bill, not left to regulations that could be changed or overturned in future, with a return to what some might regard as the bad old days of local government.
The key principles of the new access to information regime should be in the Bill. Chapter 13 of the guidelines points the way, so I hope that my noble friend will consider the merits of my suggestion when he responds.

§ Lord Peyton of Yeovil
The Minister said the other day that he was unabashed at the way that the Government are handling the Bill. That frees me to say one or two things that I would otherwise hate to say, as I would resile sharply from the slightest risk of saying something that would upset the Minister. However, as he declared himself totally unabashed, I presume that his feelings are well anaesthetised by now and that he has given up any nonsense about having regard for what is said in Parliament. I understand that he has that habit of mind from the Government of whom he is a member, who find it much easier to ride roughshod over Parliament than pay undue regard to the foolish assembly that Parliament is in their eyes.
There are 51 pages of amendments—almost all of them government amendments—to a 51-page Bill. It is quite a feat to have rewritten the Bill to that extent. The Minister ought to have at least a teaspoonful of gall before he gets away with that. I should like to ask a question. Why was this amendment not part of the original Bill? It could have been thought of before. Furthermore, when the noble Lord says that it will introduce a wider degree of democracy, I pause and wonder how he can make such comments when this seems to me to be a most undemocratic procedure. As I read the whole of Amendment No. 151, it states that the Secretary of State will have power to make regulations. Those regulations will not be effectively reviewed by Parliament and it is a nonsense to pretend that they will be.
83 Perhaps I may make one further point. Subsection (1)(e) of the new clause to be inserted by Amendment No. 151 states that: The Secretary of State may by regulations make provision—… (e) for or in connection with the creation of offences in respect of any rights or requirements created or imposed by the regulations". I do not think that the Government should make light of creating offences. When the Minister replies to the debate, will he tell the Committee what kind of offences, committed by whom, the Government have in mind in this particular provision?

§ 3.30 p.m.

§ Baroness Miller of Chilthorne Domer
One reason why I feel that Amendment No. 129 is especially important returns to the point of why we are here today to consider this new Local Government Bill; namely, because both the Government and most Members of the Committee wish to tie the interests of the public more closely to what takes place in local government. However, without Amendment No. 129, it is hard to imagine that in the future the public will feel any more interested in local government than they do now, before this Bill is passed.
While it is all very well to say that, after the event the scrutiny and policy committees will be open to the public and the press, what both the public and the press—who form the main connection between the council and the public—are mainly interested in are the big decisions and all the attendant background papers and proceedings that surround those decisions. That enables the press and the public to understand how such decisions are made. Anything that disconnects the public and the press from the very heart of the decision-making process, which, as we have often been told, will be based in the executive, will weaken one of the fundamental intentions behind this legislation. The Government have stated that they want to see local government become more open to the public and to encourage the public to become more interested in the workings of local government.

§ Baroness Hamwee
The noble Lord, Lord Woolmer of Leeds, made an important point. We are dealing here with x, y or z district council, county council or perhaps unitary authority, not with "South Wessex plc". This is not the equivalent of a corporate board making decisions in quite the way that I believe the Government would like to happen. We risk losing an important element of democracy and direct accountability here, which counts for more than the accountability of a company as between its directors and its shareholders.
Will the Minister tell the Committee whether I am right in thinking that, with the provisions the Government are proposing, a member of the public will have no right to be informed of the background or of any other matters to be taken into account in any 84 major decision to be taken by the executive unless statutory provision has been made for consultation on that particular item?

§ Baroness Thomas of Walliswood
First, I should like to add my support to the comments made by my noble friend. A county council often needs to take planning decisions which may involve a wide range of issues and the extensive granting of permissions. In the past—I suspect that this will be so in the future also—there has been suspicion over exactly how such decisions were taken because of the size of the private interests with which the council was dealing. It is extremely important that there is no opportunity for anyone to be able to say, "Oh, they took that decision in secret. We do not really know what took place while that decision was taken", on, for example, the granting of a licence for waste disposal.
Secondly, I am worried that even the members of an authority may not understand the implications of such a decision and how that decision came about. At this point perhaps I may ask the Minister to confirm something for me. I am ashamed to say that I have now lost touch with whether, under this new legislation, members will retain their right to attend every meeting of a local authority.

§ Lord Whitty
I regret the confusion because I thought that the Committee would hear one more intervention.
First, I should like to confirm to the noble Lord, Lord Peyton, that the point on which I was unabashed was that, having taken into account the views of local government and the Joint Committee and having examined in more detail how these arrangements will work, the Government were prepared to bring forward a significant number of amendments. I have pointed out that that is not particularly unusual at an early stage in the progress of a Bill. However, in light of the new procedures for scrutiny and consultation, a number of amendments are likely to emerge as a result of that pre-legislative period. I am unabashed about that.
However, that is not to say that in the course of our debates on these and other amendments I may feel that perhaps we need to change our minds if a good case is made by a Member of the Committee. For that reason, I do not think that the noble Lord is correct to say that this is an example of the Government disparaging the role of Parliament in either House. It is most certainly not my wish or intention to do any such thing. I trust that the manner in which I conduct the proceedings on this Bill in the Chamber, and other Bills, indicates that the Government take note of all concerns raised.
As regards the specific point made by the noble Lord on new Clause 151(1)(e), this has been partly touched on in the draft regulations. Those draft regulations are available to Members of the Committee as the first House to consider the Bill; they are probably available earlier than many local government legislative initiatives have been. The offences referred to would be offences which an executive would commit if it failed to make a record of a decision or if the relevant officer 85 failed to publish that decision and the reasons for it along with the relevant factual evidence and background. That must be done in line with the guidance that will be provided. It will ensure that the public have better access to the reasons why decisions are made. To that extent, I believe this provision is an enhancement rather than a reduction of democracy.
We are bringing in measures that will require all the relevant information to be made available, along with a basic and fundamental structure that will enable scrutiny committees to interrogate and comment on the decisions of the executive in a way that the present confused situation does not. Currently, back-bench members of executive committees do not have such rights because they are party to the decisions.
Therefore, the issue of where responsibility lies is given greater clarity. I had believed that Amendment No. 151 made clear that it is intended to provide that degree of clarity. However, I recognise that the noble Baroness, Lady Hamwee, and my noble friend Lord Woolmer both raised the question of whether we could identify more clearly where the responsibility lies, perhaps bringing in guidance on the face of the Bill. Although I may be reluctant to go too far down that road, I understand the basic point in terms of identification of accountability. I accept that we should look at the issue again in that light and, having considered those points, I hope that I shall not offend noble Lords if we bring forward a relatively straightforward amendment which I hope will meet the main concerns.
With regard to the points made by the noble Baroness, Lady Miller of Chilthorne Domer, and others on her Benches, it seems to me that if we make available in the guidance and under the aegis of this new clause all the background material to the press and to the public, we shall enhance the quality of debate and therefore, it is hoped, the degree of seriousness with which the public in general regard local government.
We must also avoid the presumption that at present the press is able to find out the background material on decisions under the present committee structure of local councils. That is far from the truth. We all know that in practice decisions are made in the vital exchange of information and that the balance of argument is faced up to in areas which are not open to the public and certainly not open to the press. That would make meetings slightly more open and significantly more detailed, while at the same time retaining the right of the executive to organise its own affairs in the way it deems most appropriate. One will know who makes a decision, which individual is responsible and what meeting of the executive was responsible at that level.
Therefore, I believe that some of the fears expressed that the new structure of meetings will reduce the openness and availability of information, as compared to the present situation, are seriously misplaced. The noble Baroness, Lady Thomas, for example, referred to planning decisions. Planning committees will not be affected in the same way as other decisions under this 86 arrangement. It is certainly true that in cases of final executive decision, that decision will not be available before the formal decision and the immediate background papers are made available. However, those decisions do not come out of the ether. They will already have been subject to considerable discussion in the community and in the council. Subsequently they will be subject, and in many cases prospectively subject, to the role of the overview and scrutiny committees in probing that information.
Therefore, I believe that we shall have a more robust system of openness and accountability than we have now and that the anxieties that have been expressed are misplaced. I hope that the House will recognise the Government's intentions, if no more, in putting forward the amendments in this form and providing as background the guidance which will be triggered by the amendment.

§ Baroness Hanham
I am amazed at the type of "patsy" council which the Minister brings to mind when he talks about how councils apparently behaved in the past. It is not a structure or way of behaviour that I recognise councils as having been guilty of in general; that is, not providing material or having it published.
My reason for rising is to press a little further on proposed paragraph (1)(e) in Amendment No. 151. As I understand the Minister's response, offences will be created. Offences are criminal matters. Is it right for the noble Lord to create a criminal offence if matters are not put into the public arena? Secondly, it has always been the case that councillors who are advised properly and who have taken proper advice from their officers are considered to have behaved properly and in light of the law. I wonder whether that is to change under the new system.

§ 3.45 p.m.

§ Baroness Thomas of Walliswood
I must apologise. I misused the word "planning". I was responding to the debate and thinking on my feet rather than reading from a prepared intervention. I was trying to find a word for the major and expensive decisions which unitary authorities and county councils in particular have to make. With the greatest respect to the Minister, I do not believe that he responded to my point on the suspicion that arises when those major, expensive decisions—the implementation of a budget in large chunks involving deals particularly with the private sector—which are perfectly legitimate and right under the rules which govern behaviour of local authorities today, are taken in private. There is already enough suspicion about what goes on behind closed doors without adding to it. That is the point that I was trying to make.

§ Lord Smith of Leigh
I remind the Committee that I have an interest in terms of being a local councillor. I know that many noble Lords who have spoken in the debate also share that interest—at least in the past if not at present. In view of what has been said in this debate, I have some difficulty in recognizing 87 the local government that I experienced. I believe that we must recognise the form, substance and reality of what goes on in formal committees, where decisions are often made outside. How many times have committees made decisions on the basis of debating issues and finding solutions? More than likely, they accept recommendations.
The noble Baroness, Lady Miller, commented on the present regulations. They have not generated the interest in local government decisions which we are trying to address in this Bill. The fact that access to information exists in its present form has not created a climate in which people show an interest in local government.
However, although we are creating new structures, in a sense the formal requirements of a public authority remain the same. Decisions are bound to be made in private if there are commercial sensitivities, particularly when dealing with more than one private contractor. Beyond that, accountability is achieved partly through access to information, perhaps in the press, and partly through the scrutiny processes of the council. As the Minister said, this is greatly enhanced by the Bill and, in addition, there are the normal safeguards which exist at the moment; namely, the monitoring officer and the audit arrangements. Those will still be in place to make sure that decisions are made in a proper manner.
I believe that all of us who have been involved in political activity where decision-making has taken place know that a certain amount will take place in private. Some matters involve certain sensitivities— sometimes commercial, sometimes in relation to individuals and staffing responsibilities, but often political. Those decisions will begin to be made privately, however formally the decisions need to be recorded. I believe that the Government have recognised the reality of that situation and have included provisions in the Bill to make it more accountable, more open than it is at present, and to provide the opportunity for greater scrutiny through the overview and scrutiny committees which can look at the way that decisions are made.
I believe that it is right that executive decisions should be made public. Normally, I believe that reasons should be given if executives want to meet in private, but we should recognise that those decisions are bound to arise. I believe that the changes in the nature of local government envisaged in the Bill require a change in the way we access information and the way that information is presented to the public. I believe that the Government have brought that about in Amendment No. 151.

§ Lord Whitty
I apologise for intervening once more. I believe that my noble friend Lord Smith placed this issue in the broader context of the effects of the change, compared to the present situation. In response to the noble Baroness, Lady Hanham, I was not necessarily criticising the current practice of many local authorities. However, the point is that the system does not in any sense guarantee availability or accountability of either information or clarity of 88 responsibility under the present system. That system is intended to ensure that there is greater clarity and tighter minimum requirements on the provision of information. I believe that it achieves that.
As regards offences, under the present system offences already exist in relation to denying access to information and flouting the information regime which is required under existing local government legislation. This provision merely transposes that into the new regime. Some of that is spelled out—for example, the role of the monitoring office—in the guidance. So we are not creating a precedent. It has been the case for some time.
Perhaps I should say to the noble Baroness, Lady Thomas, that I recognise that major decisions will be taken on which one would expect there to be some public engagement. Those decisions should require the availability of some public information prior to the final decision being made. In terms of the major decisions to which she referred, that will inevitably the case. It will be the case also that the major role of the scrutiny and overview committee will be ongoing to assess the run-up to the executive reaching such major decisions. Therefore, it will not merely be a post facto look at how the executive has arrived at its decisions or an inquest into previous decisions. There will be ongoing assessment and monitoring of the way in which the executive is doing its job.
That is quite a novel concept in relation to local government. It is relatively new in relation to Westminster. But it is not unknown in constitutional arrangements elsewhere around the world and I believe that it is a major step forward for local government.
The issues relating to the budget or any alterations to it will be made in full council in any event. Therefore, we are not talking about the creation of new funds or new streams of funds, although. as my noble friend Lord Smith said, there will be occasions when the decisions on how those funds are dealt with, particularly in relation to public/private partnerships, must be reached in private and then explained because of commercial confidentiality or personal involvement.
Therefore, I reiterate that to an extent this regime builds on the best of the old system but it does that in a way which recognises the new structure. It provides greater and often earlier access to information. It provides also greater power both to the overview and scrutiny committees than accrues at present to backbench councillors and to the press and the public as a whole. Therefore, through those measures I believe that we are enhancing democracy and accountability.

§ Lord Dixon-Smith
It was perhaps inevitable that this group of amendments would provoke debate because if a council elects to change to executive arrangements, that is a radical change in the way in which business has traditionally been carried out by local government in this country. It is right that the consequences of that should be looked at in some detail. I am grateful to all Members of the Committee 89 who have contributed to the debate. It seems superfluous to pick up all the points which have been raised when the Minister, with his usual ability, has summed up what has been said by so many who contributed.
But we should just remember that the motivation behind the Bill is greater efficiency rather than greater democracy. The question then is how the need for democracy and greater transparency is welded on to that. That was the point at which the noble Lord, Lord Woolmer, was driving. That is what is in the back of the minds of everybody who has spoken in this debate.
The idea that local communities are intensely and passionately involved in the minutiae of many of the matters with which local authorities must deal so that they discuss them over supper when both husband and wife are at home—at least, if it is a traditional household and one must be careful how one says these things—is unreal. Equally unreal is the idea that we shall see policy development in public. If you do not have some idea of what your policy is and what the consequences of what you are saying will be before you start saying it in public, you are a very unwise politician indeed. I do not believe that the Minister has ever suffered from that failure, at least not since I have known him. We need to be aware of those realities.
We all need to study what the Minister has said. He has said that he will look at the question of information availability to the public. I am grateful to him for that. But we may well need to return to points of detail on this matter at a later stage in the Bill. But for the moment, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 12 [Responsibility for executive functions in case of s. 10(2) executive]:

§ Lord Whitty moved Amendment No. 88: Page 6, leave out lines 23 to 30 and insert— ("(1) Subject to any provision made under section (Discharge area committees), (Discharge of functions of and by another local authority) or (Joint exercise of functions), any functions which, under executive arrangements, are the responsibility of a mayor and cabinet executive are to be discharged in accordance with this section. (2) The elected mayor—

(a) may discharge any of those functions, or
(b) may arrange for the discharge of any of those functions—").

§ The noble Lord said: In moving this amendment, I shall speak also to the large number of other amendments which appear within this group. I assure the Committee that in this case most of the amendments are consequential on the main point.

§ The amendments deal with the ways in which executive functions can be delegated, both within the executive and to officers. They amend Clauses 12 to 14 and introduce a new clause after Clause 14. To inform the debate, we have published a consultative draft of guidance, chapters 7 to 10 of which deal with those issues in detail. The amendments are necessary to tidy up Clauses 12 to 14 dealing with executive functions.

§ Amendments Nos. 88, 89 and 91 to 99 amend Clause 12, which deals with the way in which a mayor and cabinet form of executive may delegate functions. Amendment No. 88 is consequential on the new clauses on area committees, joint committees and delegation to authorities.

§ Amendments Nos. 89 and 91 to 99 are minor and consequential drafting amendments.

§ Amendments Nos. 100, 101, and 103 to 116 amend Clause 13 which deals with ways in which the leader and cabinet form of executive may delegate functions. Subsection (1) in Amendment No. 100 is consequential on the new clauses on area committees, joint committees and delegation to another authority, which we shall debate shortly, and is necessary to enable delegation of executive functions in that way. I am wrong to say that we shall debate those matters shortly. They were dealt with at the end of our proceedings last Tuesday.

§ The rest of Amendment No. 100 clarifies the provisions which were previously in subsections (2) to (4) of Clause 13. The new subsections (2) and (3) enable the council to specify in the executive arrangements the scheme for delegation of executive functions.

§ The new subsection (4) enables the executive leader to determine such delegations where they are not specified in the executive arrangements. Those may be described as—although I do not particularly like the description—the so-called "weak" and "strong" leader arrangements, although it is possible for there to be executive arrangements where some of the functions are allocated by the authority and others by the leader.

§ Amendment No. 112 allows the leader, where he determines the delegations, to prevent any person or body to whom he has delegated a function from further delegating that function. That is similar to the provisions in Clause 12 relating to the mayor and delegation.

§ The next group contains further consequential amendments which deal with mayoral form. Amendments Nos. 117, 119 and 120 amend Clause 14, which deals with ways in which the mayor and council manager form of executive may delegate functions. These minor and consequential drafting amendments arise from the new clauses on area committees.

§ Amendment No. 121 introduces a new clause to enable the Secretary of State to make regulations on how functions can be delegated in any new form of executive defined in regulations under Clause 10(5). This new enabling power has been included to reduce the need to rely on the powers in the Bill to make incidental, consequential, transitional and supplemental provisions if further forms of executive are defined using the power in Clause 10.

§ I hope that the amendments will be uncontroversial and spell out the implications for the various forms of executive functional amendments previously carried. I beg to move.

§ 4 p.m.

§ Lord Dixon-Smith
Amendments Nos. 90, 102 and 118 tabled in my name are all directed to the same purpose; that is, to make it possible for an authority using executive arrangements none the less still to work through area committees. I am happy to say that that will now be the situation so I need say no more upon it except that this is yet another group of amendments that it would have been nice not to have tabled. With that. there is nothing more to say.

§ Baroness Hamwee
I should like to ask an entirely straight question concerning Amendment No. 117. Can the Minister confirm that my reading of the amendment, or at any rate the clause as it will be amended, is correct; namely, that where the executive arrangement is elected mayor plus council manager, the council manager but not the mayor will be in a position to discharge functions? I understand that from reading the end of the amendment together with the rest of the clause. To put it another way, I refer to the position of the elected mayor in that form of executive arrangement. I shall be glad to have clarification.

§ Lord Smith of Leigh
I agree with my noble friend the Minister as regards the unsatisfactory terminology used in Chapter 9 of the draft regulations; that is, "strong- and "weak leader". Perhaps I may suggest "autocratic" and "democratic" as alternatives.

§ Baroness Miller of Chilthorne Domer
As the Minister stated, last week we debated very late in the evening the area committee function and joint working relations. However, I must raise concerns to put them on the record regarding this model of working. I refer to the fact that in the guidance, as currently written, there is the still the problem that area committees are not permitted to discharge the overview and scrutiny function unless they are politically balanced. As I pointed out last time, if an area committee has been elected by the population of that area, it is not therefore in the gift of the council as to whether or not it is politically balanced. It is therefore impossible for the area committee to fulfil that requirement.
This is obviously a detailed issue, and one which the Minister was unable to answer last week. However, I hope he will be able to address it in a satisfactory way so that, should the mayor or council manager choose to delegate the scrutiny function to the area committee, an impossible demand is not made in the guidance that area committees cannot fulfil that function because they are not politically balanced.

§ Lord Whitty
In response to my noble friend Lord Smith perhaps I may say that I hesitate to find a better form of words than those used in the guidance. However, I should put on record that the alternative terminology he proposed perhaps gives the wrong impression of at least one form of structure which we propose.
The noble Baroness, Lady Hamwee, raised a question on Amendment No. 117 concerning the respective roles of the council manager and the mayor.
92 The noble Baroness is correct in her interpretation. If she requires further detail, I shall no doubt be able to provide it in writing.
In response to the question raised by the noble Baroness, Lady Miller of Chilthorne Domer, we have partially debated that issue and I am in the process of writing to her. The position is that the overview and scrutiny committees at their council level can have a valuable role in helping councillors to represent their constituents. The area committees can advise such overview and scrutiny committees. I recall attempting to explain this issue previously. It is not that individual area committees would have to be politically balanced different from that which we had been left with by the electorate, but that the overall scrutiny function would have to he politically balanced.
It would probably be better for the noble Baroness to await my letter on this subject. However, there is a distinction. There is no intention to override the political judgment of those covered by the area committees. This concerns the role they can then fulfil. I hope that that clarifies the position.

§ On Question, amendment agreed to.

§ Lord Whitty moved Amendment No. 89: Page 6, line 32, leave out ("single").

§ On Question, amendment agreed to.

§ [Amendment No. 90 not moved.]

§ Lord Whittymoved Amendments Nos. 91 to 99: Page 6, line 35, leave out ("executive"). Page 6, line 41, leave out ("executive"). Page 6, line 42, leave out ("single"). Page 6, line 43. leave out ("the single") and insert ("that"). Page 7, line 1, leave out ("executive"). Page 7, line 6, leave out ("single"). Page 7, line 6, leave out second ("executive"). Page 7. line 7, leave out ("single"). Page 7, line 8, leave out ("single").

§ On Question, amendments agreed to.

§ Clause 12, as amended, agreed to.

§ Clause 13 [Responsibility for executive functions in case of s. 10(3) executive]:

§ Lord Whitty moved Amendment Nos. 100 and 101: Page 7, leave out lines 10 to 19 and insert— (".—(1) Subject to any provision made under section (Discharge of functions by area committees), (Discharge of functions of and by another local authority) or (Joint exercise of functions), any functions which, under executive arrangements, are the responsibility of a leader and cabinet executive are to be discharged in accordance with this section. (2) The executive arrangements may make provision with respect to the allocation of any functions which are the responsibility of the executive among the following persons—

(a) the executive,
(b) any members of the executive,
(c) any committees of the executive, and
(d) any officers of the authority.

93 (3) If the executive arrangements make such provision as is mentioned in subsection (2), any person to whom a function is allocated in accordance with that provision may discharge the function. (4) If or to the extent that the functions which are the responsibility of the executive are not allocated in accordance with such provision as is mentioned in subsection (2), the executive leader—

(a) may discharge any of those functions, or
(b) may arrange for the discharge of any of those functions—").

Page 7, line 21, leave out ("single").

§ On Question, amendments agreed to.

§ [Amendment No. 102 not moved.]

§ Lord Whitty moved Amendments Nos. 103 to 116: Page 7, line 24, leave out subsection (4). Page 7, line 30, leave out ("executive"). Page 7, line 30, leave out (", or are required to be,"). Page 7, line 35, leave out ("executive"). Page 7, line 35, leave out (", or are required to be,"). Page 7, line 36, leave out ("single"). Page 7, line 37, leave out ("the single") and insert ("that"). Page 7, line 39, leave out ("executive"). Page 7, line 39, leave out (", or are required to be,"). Page 7, line 42, at end insert— ("( ) Where the executive leader makes any arrangements under subsection (4)(b)(i), (ii), or (iii), he may direct, at that or any subsequent time, that subsection (5), (6) or (7) (as the case may be) is not to apply to any of the functions which are the subject of those arrangements or is not to apply to any of those functions in such cases or circumstances as he may direct."). Page 7, line 44, leave out ("single"). Page 7, line 45, leave out ("single"). Page 8, line 1, leave out ("single"). Page 8, line 3, leave out subsection (9) and insert— ("( ) The reference in subsection (2)(b) to the members of the executive includes a reference to the executive leader, and subsection (6) in its application for the purposes of subsection (2)(b) is to be construed accordingly.").

§ On Question, amendments agreed to.

§ Clause 13, as amended, agreed to.

§ Clause 14 [Responsibility for executive functions in case of s. 10(4) executive]:

§ Lord Whitty moved Amendment No. 117: Page 8, leave out lines 5 to 12 and insert— ("(1) Subject to any provision made under section (Discharge of functions by area committees), (Discharge of functions of and by another local authority) or (Joint exercise of functions), the functions which, under executive arrangements, are the responsibility of a mayor and council manager executive are to be discharged in accordance with this section. (2) The executive—

(a) may discharge any of those functions, or
(b) may arrange for the discharge of any of those functions—").

§ On Question, amendment agreed to.

§ [Amendment No. 118 not moved.]

§ Lord Whitty moved Amendment No. 119 and 120:

Page 8, line 15, leave out ("executive").
Page 8, line 20, leave out ("executive").

§ On Question, amendments agreed to.

§ Clause 14, as amended, agreed to.

§ Lord Whitty moved Amendment No. 121: After Clause 14, insert the following new clause—

§ DISCHARGE OF FUNCTIONS: S. 10(5) EXECUTIVE

§ (".—(1) The Secretary of State may by regulations make provision with respect to the ways in which any functions which, under executive arrangements, are the responsibility of an executive which takes a form prescribed in regulations under section 10(5) are to be discharged.

§ (2) The provision which may be made by regulations under this section includes provision which applies or reproduces (with or without modifications) any provisions of section 12, 13 or 14.

§ (3) Nothing in subsection (2) affects the generality of the power under subsection (1).

§ (4) Any provision made by regulations under this section is subject to any provision made under section (Discharge of functions by area committees), (Discharge of functions of and by another local authority) or (Joint exercise of functions).").

§ On Question, amendment agreed to.

§ Lord Whitty moved Amendment No. 122: After Clause 14, insert the following new clause—

§ DISCHARGE OF FUNCTIONS BY AREA COMMITTEES

§ (".—(1) The Secretary of State may by regulations make provision for or in connection with enabling an executive of a local authority, or a committee or specified member of such an executive, to arrange for the discharge of any functions which, under executive arrangements, are the responsibility of the executive by an area committee of that authority.

§ (2) Regulations under this section may impose limitations or restrictions on the arrangements which may be made by virtue of the regulations (including limitations or restrictions on the functions which may be the subject of such arrangements).

§ (3) In this section— area committee", in relation to a local authority, means a committee of the authority which has functions in respect of part of the area of the authority and which satisfies such other conditions as may be specified, specified" means specified in regulations under this section.").

§ The noble Lord said: I beg to move.

§ [Amendments Nos. 123 and 124, as amendments to Amendment No. 122, not moved.]

§ On Question, Amendment No. 122 agreed to.

§ Lord Whitty moved Amendment No. 125: After Clause 14, insert the following new clause—

§ DISCHARGE OF FUNCTIONS OF AND BY ANOTHER LOCAL AUTHORITY

§ ("—(1) The Secretary of State may by regulations make provision for or in connection with enabling an executive of a local authority (within the meaning of this Part), or a committee or specified member of such an executive, to arrange for the discharge of any functions which, under executive arrangements, are the responsibility of the executive—

(a) by another local authority (within the meaning of section 101 of the Local Government Act 1972), or
(b) by an executive of another local authority (within the meaning of this Part) or a committee or specified member of such an executive.

§ (2) The Secretary of State may by regulations make provision for or in connection with enabling a local authority (within the meaning of section 101 of that Act) to arrange for the discharge of 95 any of their functions by an executive of another local authority (within the meaning of this Part) or a committee or specified member of such an executive.

§ (3) The reference in subsection (2) to the functions of a local authority, in a case where the authority is operating executive arrangements, is a reference to the functions which, under those arrangements, are not the responsibility of the authority's executive.

§ (4) Regulations under subsection (1) or (2) may include provision—

(a) requiring, in the case of arrangements for the discharge of any functions by an executive of a local authority or a committee or member of such an executive, the approval of the authority to such arrangements,
(b) which, in the case of arrangements for the discharge of any functions by a local authority, enables any of those functions to be delegated.
(c) which, in the case of arrangements for the discharge of any functions by an executive of a local authority or a committee or member of such an executive, enables any of those functions to be delegated.

§ (5) The provision which may be made under subsection (4)(b) includes provision which applies or reproduces (with or without modifications) any provisions of section 101(2) to (4) of the Local Government Act 1972.

§ (6) The provision which may be made under subsection (4)(c) includes provision which applies or reproduces (with or without modifications) any provisions of section 12(3) to (6), 13(5) to (9) or 14(3) and (4).

§ (7) Nothing in subsection (4), (5) or (6) affects the generality of the power under subsection (1) or (2)

§ (8) In this section "specified" means specified in regulations under this section.").

§ On Question, amendment agreed to.

§ Lord Whitty moved Amendment No. 126: After Clause 14, insert the following new clause—

§ JOINT EXERCISE OF FUNCTIONS

§ (".—(1) The Secretary of State may by regulations make provision for or in connection with permitting arrangements under section 101(5) of the Local Government Act 1972 where any of the functions which are the subject of the arrangements are the responsibility of an executive of a local authority under executive arrangements.

§ (2) The provision which may he made under subsection (1) includes provision—

(a) as to the circumstances in which the executive, or a committee a- specified member of the executive, is to be a party to the arrangements in place of the authority,
(b) as to the circumstances in which—

(i) the authority, and
(ii) the executive or a committee or specified member of the executive, are both to be parties to the arrangements,
(c) as to the circumstances in which any functions of the local authority under section 102(1)(b), (2) or (3) of the Local Government Act 1972, so far as they relate to any joint committee falling within section 101(5)(a) of that Act, are instead to be exercised by the executive or a committee or specified member of the executive,
(d) I as to the circumstances in which any functions of the local authority under section 102(1)(b), (2) or (3) of that Act, so far as they relate to any such joint committee, are to be exercised by the authority,
(e) as to the circumstances in which appointments to any such joint committee by the executive, or a committee or specified member of the executive, need not be made in accordance with the political balance requirements,
(f) as to the persons (including officers of the authority) who may be appointed to any such joint committee by the executive or a specified member of the executive.

§ (3) Nothing in subsection (2) affects the generality of the power under subsection (1).

§ (4) In this section "specified" means specified in regulations under this section.").

§ On Question, amendment agreed to.

§ [Amendments Nos. 127 to 130 not moved.]

§ Clause 15 [Overview and scrutiny committees]:

§ Lord Whitty moved Amendment No. 131: Page 8, line 24, after ("appointment") insert ( by the authority").

§ The noble Lord said: In moving Amendment No. 131, I shall speak also to the other government amendments in this group. All of these amendments deal with the issue of overview and scrutiny committees.

§ We tabled this series of amendments to reinforce what we see as the crucial role of the committees. Under the new arrangements the executive will make the majority of day-to-day decisions. As I said, that decision-making process must meet our aims of being more efficient, transparent and accountable. We therefore need to ensure that, unlike the existing system, it is opened up to clear and proper scrutiny and that councillors outside the executive, and other stakeholders, are given a strong role in policy development alongside the executive. These amendments to enhance the position of the overview and scrutiny committees are designed to do just that.

§ Amendments Nos. 133 to 135 clarify the remit of overview and scrutiny committees. They make it clear that every function which is the responsibility of the executive must be capable of being reviewed and scrutinised by at least one committee. They also make it clear that they can examine not only decisions, but also all actions taken by the executive in connection with the discharge of its functions. That delivers our policy of ensuring that all executive actions are open to challenge and public accountability and meet some of the anxieties expressed in the earlier debate.

§ Amendments Nos. 137 and 138 further clarify the power of overview and scrutiny committees in respect of their key roles in policy development and review of all council functions. They are an expansion of Clauses 15(1)(a) and (b)(i) in the Bill.

§ Amendment No. 140 ensures that an overview and scrutiny committee, where it wishes to challenge an executive decision, has the power to have the decision reconsidered before implementation. Exactly how such a "call-in" mechanism might work in an individual authority will be largely a matter for local choice. But we wish to ensure that such a power exists. The amendment would allow the committee to ask. the relevant part of the executive to reconsider the matter, or to refer the matter to full council for debate to see whether it thinks the matter needs consideration. The power is proposed as a direct response to the Joint Committee's recommendations.

§ Amendment No. 140 also ensures that an overview and scrutiny committee cannot discharge any other function on behalf of the council. That is to ensure a proper division between the discharge of executive duties and discharge of scrutiny duties. The committees are there to look at how council functions are being discharged. Such an arrangement would be blurred if it was itself carrying out some of those functions.

§ Amendment No. 145 deals with people who are not members of the authority being co-opted on to overview and scrutiny committees. It also deals, in new subsection (2D), with the rules which govern the way in which such committees operate. For such committees to be effective, it is important that they involve representatives of the local community as appropriate. The amendment would allow them to co-opt non-councillors. However, it also makes it clear that, with one important exception, those co-opted members will not be able to vote on such committees. That is in line with the general existing rules.

§ The important exception relates to church and parent-governor representatives. They will have the right to be co-opted on to overview and scrutiny committees which deal with education matters. That is dealt with in part by the amendment of the right reverend Prelate. At present such representatives sit on education committees by virtue of the provisions of the Education Act 1996. The Government recognise the valuable role that they have played in education and want to see those contributions continue. The amendment therefore enshrines on the face of this Bill their rights to scrutinise and review education matters.

§ Subsection (2D) applies also to overview and scrutiny committees and sub-committees the access to information regime that currently applies to the committee system. It also ensures that such committees reflect the overall political balance of the council. Ensuring that all parties on the council are represented in proportion on each committee will make overview and scrutiny suitably non-partisan and, as far as possible, non-adversarial.

§ I hope that the Committee will recognise that the amendments are designed to achieve exactly the objective referred to in the earlier debate of effective scrutiny of executive decisions of the council under the new structures. I beg to move.

§ Lord Campbell of Alloway
Perhaps I can ask the Minister a short question for clarification. Do the responsibilities for executive functions under Clause 12 in any way govern or relate to the exercise of the powers of a local authority under Clause 2(1)(b)? The Minister will remember that we had a discussion on this in two contexts on two amendments earlier. It may be that I am ignorant, which I am, of the interstice of local government administration, but I merely seek clarification.

§ 4.15 p.m.

§ Baroness Hamwee
This is a difficult group of amendments to handle. A number of different points are raised by a number of the amendments. The noble Lord, Lord Dixon-Smith, indicated that he will be happy for me to speak next, perhaps because my Amendment No. 140A is an amendment to the Minster's amendment to which he has already spoken.
The noble Lord pre-empted the point by explaining lines 9 and 10 by saying that, if the overview and scrutiny committees were to extend their roles beyond the functions set out on the face of the Bill, there would be a blurring of the position. Our objection to the proposed new subsection is that, to provide that the functions of an overview and scrutiny committee may be only those which Parliament—for which read "the Government"—decides that it may have, seems to us to be yet another inappropriate constraint on the proper flexibility of local government. It is yet another centralising provision.
Amendment No. 140A would provide that an overview and scrutiny committee could discharge functions imposed or permitted by the authority itself. That would not detract from its principal functions as set out in the clause and the clause as amended. We feel—I have no doubt it will be a theme which runs through the rest of today's debate—that the Government are losing valuable opportunities for the input of those people who will be members of the overview and scrutiny committees in such a rigid demarcation.
I want to comment on Amendment No. 146. However, it may be that the noble Lord, Lord Dixon-Smith, should speak to it first. Perhaps I may come back into the debate later if I feel that there are still points I should like to make.

§ Lord Dixon-Smith
I am grateful to the noble Baroness. I tabled four amendments in this group, each important in its way.
Amendment No. 139 would permit an overview and scrutiny committee, to advise the executive [of a local authority] on the future discharge of its executive functions". It is difficult to make a clear distinction between policy, executive and overview. A real problem exists in this regard and the Government, in trying to make clear distinctions, are in danger of creating a system where smooth operation will not happen.
There is also the problem that members of the authority who are not serving on the executive must have a real job to do. It is perfectly true that some functions will not be handled by the executive; those will still remain for ordinary members.
Then there are the overview and scrutiny committees, of which there may be one or more and in respect of which we have tabled further amendments. There will also be a standards committee. So there are other matters to be considered. However, the question is whether those committees will attract people of ability and vision. If one wishes to serve one's 99 community, a considerable amount of trouble and inconvenience is involved in standing for election, even though it may only be for a local authority.
Unless it is felt that there is a worthwhile job to do at the end of the day, good people will not stand for election. It is a very sad fact that, in general, politics today attracts few people of real ability because they can do so much better in the outside world. Indeed, for youngish people, family interests and the interests of one's children inevitably come before what we would regard as the obvious and wider interests of the community at large. That is a sad fact of life. So we must also bear that thought in mind.
Amendment No. 146 requires officers serving the oversight and scrutiny committees to be responsible to the council, and slates that they should clearly be seen not to serve the executive. I believe that that distinction will prove to be very important for the integrity of the whole new system. However, it is not straightforward and easy. In the case of some of the very small rural authorities, I suspect that staff numbers of qualified people, especially in the chief executive's department—I am sorry; I have to be careful how I use that word now—will in fact be small. We may well find difficulties in building Chinese walls of the sort that I think everyone agrees are desirable.
Amendment No. 148 would make it possible for the head of the paid service or the monitoring officer to summon a meeting of an oversight and scrutiny committee, whenever he felt that it was necessary. The Minister talked about the need for openness, clarity and clear responsibility. For this system to be open, clear and transparent, I believe that that particular facility should be available.
Amendment No. 149 deals with the matter of education and refers in particular to members in a "non-voting capacity" in relation to religion. I thought it worth tabling the amendment in what I would call a "non-traditional" form by inviting consideration that there should be at least one person representing each of the main religious faiths within the area. In the past, some religious faiths have not been involved in education committees. However, there are communities that are not well served in this respect. I commend Amendment No. 149 as producing a thought that I hope the Minister will consider with some sympathy.
All of these amendments are, in their own right, somewhat serious amendments. I look forward to hearing the Minister's response.

§ The Lord Bishop of Blackburn
I shall speak to Amendments No. 150 and 152, which are tabled in my name. I must apologise to Members of the Committee because when the discussion on this group of amendments began I was still sitting in a taxi-cab in Trafalgar Square, getting ever more anxious that I should not be here before the end of the debate.
I begin by thanking the noble Lord, Lord Whitty, his fellow Ministers and officials at the department for listening to the concerns expressed on behalf of the Churches, both in this Chamber and elsewhere. As 100 long ago as November 1998, my predecessor as chair of the Church of England Board of Education, the then Bishop of Ripon, wrote to the Deputy Prime Minister to express the concern of the Churches about the loss of their voice and vote on local government committees dealing with education. The assurances then given by the Deputy Prime Minister and repeated in this Chamber and elsewhere by his fellow Ministers, as well as in the draft Bill and White Paper, were not given full effect when this Bill was first considered in your Lordships' House. I have therefore tabled the two amendments.
The right reverend Prelate the Bishop of Oxford spoke on Second Reading. My amendments would not have quite the same effect of making up what the Churches and parent-governor representatives lose by the abolition of education committees, but I believe that they go as far as can reasonably be expected in the present climate.
I now turn to the detail of my proposed amendments. I shall deal, first, with Amendment No. 152 because that is the more substantial of the two. Subsection (2) of the proposed new clause would have the effect of requiring a local authority with responsibility for education to establish one overview and scrutiny committee solely to oversee and scrutinise the work of education. I believe that there is great concern that this should be so; indeed, if I may say so, it is wider than the Churches' interest.
Education is the largest and, arguably, the most significant aspect of any local authority's work when it has that responsibility. This is not just a result of the high profile given to education under the present Government; it arises largely because of its cost. Half of a county council's expenditure is usually spent on education and related services. But the local education authority and its elected councillors do not bear their responsibilities for this service alone. There are significant partnerships within which they work in the field of education. The Churches are major players here, providing one in three schools across the country. Indeed, it is claimed that 50 per cent of primary school children in Lancashire attend an Anglican, Roman Catholic or Methodist-sponsored school.
In our view this partnership is of vital importance to the future of education in each local authority. The amendment means that the Church and parent-governor representatives would be members of a committee, with suitably defined responsibility, in which their voice and vote would take effect. The department's draft guidance, giving effect to the Bill when enacted, suggests that any local authority would wish to have more than one overview and scrutiny committee. That may be so, but my amendment would put that guidance, as it affects education, on to the face of the Bill.
Subsection (3) of the proposed new clause relates to the power of the overview and scrutiny committee. If it has no teeth—I believe that this is the point the noble Lord, Lord Dixon-Smith, was making—it cannot bite. So my amendment is designed to give it teeth; in other 101 words, to give it effect. Under the new arrangements, back-bench councillors might be glad of a few teeth themselves. So would the Church and parent-governor representatives, although I am not terribly pleased with the analogy that I have just used. They would be able to prevent the local authority executive implementing a decision that the committee had questioned without it going to a meeting of a full council and that council giving its approval. I hope that this delaying power over the executive will appeal to Members of the Committee.
Amendment No. 150, which proposes to insert an extra subsection in Clause 15, is also concerned with giving the committee some power. For that reason I refer to it now. There was a clear intention in the White Paper attached to the draft Bill to give any member of any overview and scrutiny committee the power to require an item within the range of the committee's responsibility to be included on an agenda. I do not believe that this amendment is in any way controversial. I hope that the Government will see it as being entirely helpful to their intentions.
Perhaps I may now revert to Amendment No. 152 and subsections (4), (5) and (6). The amendment clarifies who has the duty of nominating the Church representatives on these committees. In our view, Amendment No. 145, tabled in the name of the noble Lord, Lord Whitty, is not drafted in the light of the most recent education legislation, the School Standards and Framework Act 1998, which provided for the designation of schools of a religious character and therefore removes the necessity for the slightly elliptic reference in the Minister's amendment. Moreover some religious schools are not voluntary but foundation schools. My amendment refers directly to these as distinct from Church of England and Roman Catholic schools. As the Committee will be aware, they include not only Methodist and Jewish schools, which we have had for a long time, but also a small number of Muslim, Sikh and Seventh Day Adventist schools. They too should be represented on the appropriate scrutiny committee. Subsection (7) of the proposed new clause contains a direct reference to parent governors' representatives. I note the amendment of the noble Lord, Lord Whitty, which has the same effect. I hope very much that the Minister will look sympathetically on the two amendments.

§ 4.30 p.m.

§ Lord Campbell of Alloway
I support both amendments of the right reverend Prelate. I ask the Minister to what extent, if any, these amendments, if carried into the Bill, would affect the exercise of absolute discretion under Clause 2(1)(b).

§ Baroness Hanham
I speak to Amendment No. 142 which stands in my name. This small amendment would enable members of the executive to sit on scrutiny committees rather than be totally excluded from them. One of my many worries is that this whole system of executive and scrutiny is adversarial. It has already been suggested that the executive and the 102 scrutiny bodies will be at each others' throats. I can see that it would not be plausible for an executive member who has a responsibility for what is being done on a scrutiny committee to sit on that scrutiny committee, but I can see no reason why an executive member who does not bear full responsibility for an area should not be able to sit on another scrutiny committee. Indeed, he or she may provide extremely valuable input. My amendment seeks to ensure that where there is more than one scrutiny committee, executive members can be part of them.

§ Lord King of West Bromwich
As a new Member of the Chamber I do not have extensive expertise in relation to many issues which come before it. However, as regards the particular matter of this Bill, I have current experience as the leader of a major metropolitan authority, Sandwell, and I feel able to support government Amendment No. 140 and associated amendments.
Nowhere in the Local Government Bill has there been so much misrepresentation as on the issue of delegation to executive members of councils and the "call in" power of scrutiny committees. Let us be clear what the current committee structure does. First, chairs of committees already have delegated power. Secondly, non-elected officers also have considerable delegation. Currently, many day-to-day decisions are made in keeping with the manifesto policy of a controlling political group which cannot be reversed.
Obviously any chair worth his or her salt will take contentious matters to his or her political group, but therein lies another problem. Group decisions are private, made behind closed doors and binding on all members of that group. In many cases to claim that they are debated in full committee or even full council is, to say the least, a charade and certainly offers no transparency for the electorate. At best, debates are academic; at worst, they constitute play acting.
No council can operate without delegated powers, most of which currently lie with non-elected officers, not elected members. The new executive arrangements will allow elected members to be much more involved in delegated decision-making. I suggest that that is a step in favour of democracy, not against it. Coupled with the executive is the scrutiny role which, for the first time, gives council members the right to examine and challenge decision-making without a party whip. That is refreshing transparency.
Obviously, it is not workable for every dot and comma of every decision to be called in. Such power would render a local authority unable to function. It is right and proper for scrutiny committees to ensure that council policy is being followed and best value achieved. Provided that delegation is carried out within the policy of the council and within financial and other standing orders, it streamlines local government fit for the 21st century. There may be occasional abuses but any officer or member can be dealt with by the con trolling group or the standards committee.
103 It is right to limit the power of "call in" as such a power could be used to wreck the policies upon which a controlling group had been elected. The Government's intentions are both right and sensible. I believe that they should be supported by the Committee.

§ Lord Tope
I return to the amendments spoken to by the right reverend Prelate the Bishop of Blackburn. I have considerable sympathy as regards the position in which he and his colleagues find themselves. I congratulate them on the ingenuity with which they have tackled a situation which is fundamentally flawed. If I recall correctly, the right reverend Prelate commented that the Bill appeared not to recognize— or appeared not to be up-to-date with—what is happening as regards the reforms to school government. I speak more usually in this Chamber on education matters but I spend most of my life outside it working in local government. It has long been clear to me that Ministers and officials in the DETR and the DfEE have little knowledge, or certainly little understanding, of what each other is doing. The dilemma we are discussing illustrates that better than any other.
It is not much more than a year ago that we debated what is now the School Standards and Framework Act, Section 9 of which requires that representatives of parent governors be appointed to education committees. At that time the DETR took measures— which we now have before us—which effectively get rid of education committees. Today we are discussing how to deal with the consequences of that. I recall the predecessor of the right reverend Prelate—as the latter said—raising the issue as long ago as 1998. It was obvious that the problem would arise. This matter exposes a fundamental flaw in the Government's determination to make a total division between executive and scrutiny responsibilities.
Church representatives on education committees, teacher representatives on education committees, and now parent governor representatives on education committees, wish to sit on the body which is taking the executive decisions. I spent many happy hours working on the then school standards Bill and I realised that it was the Government's intention that parent governors should sit on the decision-making committees. However, that is not possible under the executive/scrutiny split. Therefore, the Church and others are now trying to find what are much less satisfactory ways of dealing with that inherent and fundamental difficulty.
As I said, I congratulate the right reverend Prelate and his colleagues on finding a means to address the difficulty. I am totally sympathetic to the intentions of that amendment. I have a slight concern that subsection (2) of the proposed new clause refers to there being an overview and scrutiny committee responsible, solely in respect of the authority's functions as a local education authority". 104 I understand that. That should certainly be its principal purpose. The intention is to replicate as far as possible the previous role of an education committee, except as regards executive decision-making powers. Such an overview and scrutiny committee could very well have—and, in my view, should have— responsibility for matters connected with learning for life which are not strictly those of a local education authority. Obvious examples are libraries and heritage. They are not necessarily strictly matters for a local education authority as such, but they may quite often be appropriate within that committee.
That, in a sense, is a detail. The principle is right. If the Government believe—as they were telling us during the School Standards and Framework Bill— that the Churches should continue with the role that for many years they have had on education committees and that parent governor representatives should now have a similar role on decision-making bodies, that is what should be. In recognising what is, rather than what should be, the right reverend Prelate, in effect, seeks to give them almost a decision-making power after the event. That is much less satisfactory; but if that is the way we have to deal with it, so be it.
It is regrettable because it places such people in an essentially negative role rather than a positive one. In my experience, Church representatives on education committees overwhelmingly have taken a positive and constructive role. In effect, by this amendment we are being forced to give them a negative role of either trying to stop or to at least delay something happening. That could make a fundamental difference to the relationship between the education authority and the Churches. It is an irresolvable difficulty if the Government are determined—as they are—to go ahead with a total split between executive and scrutiny.
So those are our concerns. As I said, I have great sympathy with the position in which both the Churches and parent governors now find themselves. The amendment is one way of trying to deal with that problem—a problem which, in my view, we should not have.

§ Lord Campbell of Alloway
Very briefly, I express my appreciation to the noble Lord, Lord Tope—who has vast experience of local government, whereas I have none—for the reasons he gave and for the difficulty he expressed about the division of functions. I wholeheartedly endorse, again, his support for the amendments of the right reverend Prelate.

§ Baroness Hamwee
Perhaps I may add a few words on the question of support for overview and scrutiny committees, speaking in particular to Amendment No. 146, which stands in the name of the noble Lord, Lord Dixon-Smith. The noble Lord is a little unambitious in seeking to provide that each overview and scrutiny committee shall have "an officer". I would go further than that in terms of numbers, but I support him on the point of principle.
Because the point has been made to me, I know that I am not alone in my concern about the conflict of interests that officers may suffer. I will speak to the 105 difficult position in which officers may find themselves and the need to involve them fully in the process when we come to later amendments, but there is an obvious problem in an individual advising both the executive and the committee and scrutinising the decisions of the executive.
The question has been posed to me—I cannot give an answer to it; I hope the Minister will be able to do so—as to who is to decide at a scrutiny and overview committee which officer will answer the questions. Are the members or the officers to decide that issue? There may be a different answer if we are talking about senior or junior officers. A point has been made to me that deciding which officers at which level of seniority should answer could lead the discussion to take a different route. It has also been put to me that the load, particularly on senior officers, is changing dramatically as a result of this new arrangement. This observation comes from some experience of an authority where a similar provision for a separate scrutiny arrangement is being used.
At a traditional committee meeting, very often a junior officer will speak on a relatively minor matter. At a scrutiny committee it may be expected that a senior officer will cover an awful lot of ground on matters within a single department. I am not suggesting that senior officers should shrug off responsibility; and, in saying that junior officers often deal with minor matters, I am not suggesting that they have done so in the past under the traditional arrangements. But there are practical difficulties which are almost so great as to outweigh claims about transparency. The load on the officers involved in the process may be very difficult. They are human beings who are now having to serve a number of masters— including their own professionalism—and they may have to spend an awful lot of time, to put it in the vernacular, "mugging up" on detail before turning up at a scrutiny committee; or they may be in a position I am not alone in your Lordships' House in having been in such a position—of simply having to "busk it" and work it out on the night.
I do not believe that adequate consideration has been given to how in the real world, with real people filling these posts, this split will work.

§ 4.45 p.m.

§ Lord Whitty
At least in this House we never "busk it" and work it out on the night.
A wide range of issues has been raised in the debate. In one sense the key issue—we do not have a meeting of minds here—is that, in one way or another, noble Lords are seeking to dilute the clear distinction between the executive function and the scrutiny function. We have been very careful not to do that and to clarify that distinction as far as possible.
The noble Baroness, Lady Hanham, tackled this up front in that she proposes that we should delete the clause which excludes executive members from scrutiny committees. That would be a retrograde step in relation to what we seek to do. It could lead to 106 some very strange situations. Although the noble Baroness may feel we are drawing too tight a line— as other noble Lords also suggest—we believe that, unless we draw a clear line between the role of the executive and the role of the scrutiny committee, this new system will not work. I therefore have to resist Amendment No. 142, which stands in the name of the noble Baroness. That will also affect some of my answers to other questions.
Turning to the amendment moved by the noble Lord, Lord Dixon-Smith, I believe that his concerns have been addressed by other government amendments. It is clear in the Bill that the role of the overview and scrutiny committee is not only to scrutinise decisions "post factum", after they have been made, but to contribute to the making of those decisions and to provide an ongoing scrutiny of the executive on future policy and development. The face of the Bill should make that clear; the guidance should make that clear; and we have tabled further amendments to make that clear today, particularly Amendment No. 137. That amendment states that the committee is to, make reports or recommendations … with respect to the discharge of any functions which are the responsibility of the executive". It is quite clear that that refers not only to a review of decisions but to recommendations on how a function should be discharged in the future and how it is being discharged currently.
I also do not support Amendment No. 140A, which is an amendment to my Amendment No. 140. As I made clear when speaking to that amendment, it would be inappropriate to allow overview and scrutiny committees to discharge other functions. The functions of planning and licensing, which are not covered by the executive function, need to be carried out by bodies which have an executive and decision-taking role. The overview and scrutiny committees are intended to hold the executive to account for what it has done and what it plans to do. The purpose of Amendment No. 140 is to ensure that separation. I do not believe that it should be blurred by giving the overview and scrutiny committees some executive powers, which is what the proposal implies.
I hope that I understood the first intervention of the noble Lord, Lord Campbell of Alloway, on what is covered by the scrutiny of executive functions. However, I was not sure whether he was referring to Clause 2(1)(b), relating to the best value provisions, which are clearly an executive function and therefore overseen by the overview and scrutiny committees, or to Clause 21(1)(b) relating to the functions which the executive may undertake but is not mandatorily required to undertake.

§ Lord Campbell of Alloway
I am grateful to the Minister, because this is a very important point. I was referring to Clause 2(1)(b), which we discussed with Amendments Nos. 2 and 3.

§ Lord Whitty
In that case, the noble Lord is referring to the best value and well-being provisions. They are 107 an executive function and under these provisions are therefore overseen by the overview and scrutiny committees.
As regards staff support for the overview and scrutiny committees, addressed by Amendment No. 146, I have some sympathy with Members of the Committee and councillors up and down the land who are grappling with the issue. Clearly, substantial adjustments must, be made to the way in which councils structure themselves and the roles particularly of senior officers. It is important that the overview and scrutiny committees have support and are able to question other officers of the authority.
However, we do not wish to make a mandatory requirement that there should clearly be separate officer support. We believe that it is a matter for local choice, which will identify the split and which level of officer is responsible for the different forms of answering and support for the committees. While we recommend councils to follow the course of designating a clear support officer, we recognise that that may not be feasible in all cases, particularly in relation to small districts. Therefore, we are not going down the mandatory road. We recognise the point which the amendment attempts to address, and trust that the guidance will be sufficient to meet it.
As regards the final subsection of Amendment No. 146—that is, the requests from members of overview and scrutiny committees for papers—we do not regard it as necessary. Under the proposed arrangements, there will be a duty on the executive to make publicly available the same papers as are required under current law.
Amendment No. 148 deals with the role of the overview and scrutiny committee in relation to the monitoring officer. There is a partial misunderstanding. A monitoring officer is the proper person to deal with claims of impropriety or maladministration. Under the 1989 Act, he or she is under a duty to make a report to the authority. The overview and scrutiny committee is not the right forum for officers to bring concerns. These committees are there to overview policy and carry it out, not to look at the legality or otherwise of such decisions. Officers should therefore not refer to those committees except as part of a more general concern. If it is a specific matter of propriety, that is for the standards committees and boards. Therefore, I do not believe that the amendment addresses the appropriate committee or resolves the problem accordingly.
I turn to Amendment No. 150 tabled by the right reverend Prelate the Bishop of Blackburn. This is a helpful amendment which is in line with the recommendations we have set out in guidance. I therefore accept the principle lying behind it. We share his concern to ensure that Church representatives and all those represented on overview and scrutiny committees can have their concerns placed on the agenda, thereby forcing the executive to respond directly to any concerns they may have. With the leave 108 of the Committee and the right reverend Prelate, I should like to take away the amendment to see whether we can reflect that position in the drafting.
Amendment No. 152 rightly looks to enshrine the important role of Church representatives. I join those who pay tribute to the previous and future roles of Church representatives on education committees; they have been key players. We have every intention that they should continue to play a key role and I had hoped that our Amendment No. 145 would satisfy concerns. However, the right reverend Prelate and others have said that that is not the case.
The noble Lord, Lord Tope, intervened to make a cross-reference to the education provisions. If there is a mismatch between the two, I must in part stand responsible. As the noble Lord will recall, I was once an education spokesperson and therefore ought to be an example of joined-up government. However, I recall that during the course of the debate someone— perhaps the noble Lord, Lord Tope—foresaw the change of circumstances in which the Church representatives on education committees would be transformed by the new government proposals, and my current department clarified the position. If there remains a difficulty between the two, we must consider it and amend legislation accordingly to meet the concern. If the right reverend Prelate accepts that assurance, I shall take the amendment away and examine it.
Amendment No. 149 also relates to religious representation. It would enshrine on the face of the Bill the role of Church and parent governors. We wish to go slightly further than the amendment implies, in that they would have voting rights on the committee. That would continue the voting rights which they have on education committees under the current system. These rights are statutory for representatives from the Church of England and the Roman Catholic Church, which clearly provide the vast majority of denominational schools under our system. The right reverend Prelate and others referred to other denominations, as does the amendment, and councils may be directed by the Secretary of State to include representatives of other religious groups where they provide maintained schools in the area.

§ Lord Dixon-Smith
Amendment No. 149 refers to people serving on overview and scrutiny committees from the, main religious faiths within an area". Many communities with a large number of non-Christian faith religions do not have their own schools but are served through normal maintained schools and sometimes Church schools which are not otherwise normally represented. I hope that the Minister will consider that point, so far he has missed it.

§ Lord Whitty
I am not sure that I have missed it as much as taken a different view. The statutory provisions, and to some extent the discretionary provisions, closely relate to the engagement of those who provide schools in the education provision for the 109 local authority area. That is why for the most part we are talking about Church of England and Roman Catholic schools.
There are now schools maintained by other faiths and denominations. Representatives of religions which do not have a maintained school in the area are in a wider category. There is nothing under the provisions in the Bill to stop co-option of such representatives on to the overview and scrutiny committee, but the voting rights accrue to those who have maintained schools within the system. We should probably wish to maintain that distinction, although I am happy to look again at aspects of it.
I oppose Amendment No. 166, which stands in the name of the noble Lord, Lord Dixon-Smith. Appointments to the overview and scrutiny committees will have to reflect the overall balance of the council. Therefore, the appointment of individuals to sit on committees is a matter for the party group on the council. The appointment of councillors outside the executive should be affected by that system, which should remain in place. Party groups will be best placed to decide where their resources may be most effectively deployed in terms of which member they wish to put on the appropriate overview and scrutiny committee. It is possible, as indeed it is under the present system, that all councillors may wish to sit on one particular committee. Such a decision would have to be left to the party groups. We should bear in mind also that the overview and scrutiny committee is only one of the councillors' roles outside the executive. There are planning committees, licensing committees, and so forth.
I oppose also Amendment No. 167. I agree that it is important that the members of the overview and scrutiny committees are able to discuss any action by the executive. We have tabled amendments to Clause 15 to clarify that matter, particularly Amendment No. 140. It would be up to local choice exactly how a mechanism would work in a particular local authority. Our draft guidance puts forward various suggestions as to how that mechanism should work, but we do not need to go into further detail on the face of the Bill.
We made it clear in guidance that any member of the committee should be able to have his concerns on the agenda so as to ensure that the executive may be properly held to account and that individual councillors may raise concerns. I hope that that reassures the noble Lord that what lies behind his amendment is not necessary on the face of the Bill. I am sorry that that is quite a wide-ranging response to the debate. I see that the noble Baroness wishes to intervene.

§ 5 p.m.

§ Baroness Hamwee
I am grateful to the Minister. I return briefly to the question of officer support for the overview and scrutiny committee. The Minister says that it is a matter for each local authority to determine how to deploy its resources. Will he accept that it is 110 indeed a question of resources and that many local authorities will take the view that in order to do the job properly, they actually need more officer resource because there will be different jobs to be done in supporting the executive and in supporting the overview and scrutiny committees? If he accepts that, will he accept the corollary that it is a question of financial resources as well? In respect of funding local authorities—in particular, the decisions made centrally about the constraints on expenditure and so on—will the Minister tell the Committee how the Government propose to deal with that difficult issue?

§ Lord Whitty
I recognise that a number of local authorities consider that in order to carry out the new system effectively they need additional staff. I should dispute that that was necessarily the general rule. Local authorities will need to look at their total functions within the new regime and within a best value climate. Therefore, I should not draw any overall conclusion as to numbers of staff. It is important that we all recognise, first, that this administration have in general provided substantial additional resources to local authorities; but, secondly, they have also left it to them to decide how best to deploy their resources. We have moved, and intend to move further, towards providing overall central government support to local government. Its representatives will then themselves decide on their priorities and staffing.

§ On Question, amendment agreed to.

§ Lord Whitty moved Amendments Nos. 132 to 135: Page 8, line 24, leave out ("ordinary"). Page 8, line 25, at end insert—— ("(1A) Executive arrangements by a local authority must ensure that their overview and scrutiny committee has power (or their overview and scrutiny committees have power between them)—"). Page 8, line 26, after ("to") insert ("review or"). Page 8, line 26, after ("scrutinise") insert ("decisions made. or other action taken, in connection with").

§ On Question, amendments agreed to.

§ Baroness Hamwee moved Amendment No. 136: Page 8, line 26, after ("scrutinise") insert ("decisions made or which may be made or other action taken or which may be taken in connection with").

§ The noble Baroness said: In moving the amendment I shall speak also to Amendment No. 141. Amendment No. 136, which provides that an overview and scrutiny committee may look at decisions which may be made or actions which may be taken in the future, seeks to continue the debate about the role of the executive and the scrutiny committees. We believe that it would be a great pity if they were constrained from offering advice and making policy proposals.

§ Clause 15, if the government amendments are taken into account, is largely, although I accept not entirely, about decisions made and action taken. The new government provision allows a call-in if a decision has not yet been implemented. The Select Committee of the House of Lords and of another place—of which a number of your Lordships were members—which 111 examined the distant relative of the Bill last summer, took evidence from a number of people, including academics. As well as oral evidence, written evidence was submitted to us. Among that evidence was a memorandum from Professor John Stewart. He described the potential of an overview and scrutiny committee well. I shall quote fairly extensively from one paragraph of his memorandum. He said: It is important to recognise that while non-executive councillors scrutinise the executive and hold it to account, they also can have an important role in supporting the executive. Certainly councillors from the same party as the executive will see themselves as having such a role and such support will be required. The executive will need support from other councillors, because it faces the danger or overload if it is to take over executive responsibilities, form committees, develop policies, propose strategies. provide community leadership and be involved in partnerships. That is, being recognised in some of the transitional arrangements with the appointment of deputies, support groups of councillors and councillors as advisers…It is recognised that the executive may seek advice from an overview and scrutiny committee, but it is seen as advice from a separate body. The executive is likely to wish to work with council members in developing policy. Thus it might set up a group of councillors led by a cabinet member to develop policy in a particular area. An individual councillor could be invited to advise the cabinet on a particular topic. The executive might wish other councillors to sit upon cabinet committees".

§ I could quote far more extensively from the evidence given to the Joint Select Committee, but I tabled the amendment simply to make clear again our concern that the role of the overview and scrutiny committee should not be so constrained as to not take advantage of what it might achieve.

§ Amendment No. 141 seeks to extend the power of the committee to require the executive to refer to it decisions which the executive is about to make. I have described that as being either specific decisions or regarding an area of functions. I am concerned that the Bill will not give the real opportunity that should be given to the new committees to stop decisions being made. It will be all too possible for executives so to organise their affairs that they will not give the chance for the proper scrutiny which we all hope the new committees will achieve. In other words, they will implement decisions before they can ever be questioned. That is not how a good executive should behave as it would rapidly lose the confidence held in it. The role of legislation is not just to set out a framework but to set out some minimum standards. However, the Government appear not to wish to incorporate such a provision in the Bill. I beg to move.

§ Lord Whitty
To some extent we are the victims of how the amendments have been grouped. I accept some of what the noble Baroness says but feel that the amendments in the previous group go as far as I am prepared to go. I hope the noble Baroness will recognise that I have gone some considerable way towards meeting the concerns which she expressed.
In relation to Amendment No. 136, which seeks to amend Clause 15(1)(a), we have just agreed to Amendment No. 135, which deals with this issue. Overview and scrutiny committees have two broad roles: to scrutinise the decisions as such and to take an overview of broad policy issues and give advice to the 112 executive and the full council on how they are carrying out their functions. Amendment No. 135 deals with the first of those roles. The wording which the noble Baroness seeks to add goes into the second of the two roles—the overview of future policy. We have made it clear that overview and scrutiny committees will have the power and responsibility to look at matters which the executive is considering in future.
Our next amendment, Amendment No. 137, to which we shall come shortly, makes clear the wide-ranging role that overview and scrutiny committees will have to make reports or recommendations on any matters which are before the executive. In addition, the guidance which we have published makes it clear that in order to ensure good and effective decision-making the executive should itself be involving the overview and scrutiny committees in these decisions at a much earlier stage. I therefore think that the combination of the amendment which we have just agreed and the one we will move shortly meets the noble Baroness's concerns.
Amendment No. 141 seeks to allow overview and scrutiny committees to be able to require the executive to refer proposed decisions to them before they are taken. We believe that Amendment No. 140, to which we shall come shortly and to which I have already spoken, will achieve a similar effect and therefore the noble Baroness's amendment is unnecessary. Our amendment gives overview and scrutiny committees the power to ask the executive to reconsider a decision which has been made but not implemented. I believe that that power and the other powers in the two earlier amendments have broadly the same effect as that which is set out in the noble Baroness's amendment, in that the executive can review decisions before they have an effect, the overview and scrutiny committee can oversee the activities of the executive prior to the making of a decision and it can review decisions and the policy as a whole. I therefore think that the point is already covered by the various amendments which we have put forward and by the guidance which in draft form has been before the Committee. I therefore ask the noble Baroness not to pursue the amendments.

§ Baroness Hamwee
As has already been said today, guidance is guidance and legislation is something more than that. I was aware of Amendment No. 140. Yes, indeed, we are the victims of groupings, as we always are when dealing with complicated Bills. My amendment raised perhaps rather broader points. I understand that it is not practicable to allow an overview and scrutiny committee to require the review of a decision which has been implemented as well as made. I do not expect it to have the power to undo what has become history. What I am concerned about is getting the balance right. I want to give a broad hint to an overview and scrutiny committee that it might make sure that it gets in ahead of the game and reviews the decisions which are about to be taken and implemented.
I shall not pursue the matter now. I t would probably be easier to review some of these points when we have the Bill as amended following the Committee stage.
113 However, I remain a little concerned about whether the Government have gone far enough. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 5.15 p.m.

§ Lord Whitty moved Amendments Nos. 137 and 138: Page 8, line 26, leave out ("the executive functions, and") and insert ("any functions which are the responsibility of the executive,

( ) to make reports or recommendations to the authority or the executive with respect to the discharge of any functions which are the responsibility of the executive.
( ) to review or scrutinise decisions made, or other action taken, in connection with the discharge of any functions which are not the responsibility of the executive,
( ) to make reports or recommendations to the authority or the executive with respect to the discharge of any functions which are not the responsibility of the executive,").—

Page 8, line 29, leave out from beginning to ("on") in line 31.

§ On Question, amendments agreed to.

§ [Amendment No. 139 not moved.]

§ Lord Whitty moved Amendment No. 140: Page 8, line 32, at end insert— ("( ) The power of an overview and scrutiny committee under subsection (1A)(a) to review or scrutinise a decision made but not implemented includes power

(a) to recommend that the decision be reconsidered by the person who made it, or
(b) to arrange for its function under subsection (1A)(a), so far as it relates to the decision, to be exercised by the authority.

( ) An overview and scrutiny committee of a local authority may not discharge any functions other than its functions under this section. ( ) An overview and scrutiny committee of a local authority—

(a) may appoint one or more sub-committees, and
(b) may arrange for the discharge of any of its functions by any such sub-committee.").

§ The noble Lord said: I beg to move.

§ [Amendment No. 140A, as an amendment to Amendment No. 140, not moved.]

§ On Question, Amendment No. 140 agreed to.

§ [Amendments Nos. 141 and 142 not moved.]

§ Baroness Hamwee moved Amendment No. 143: Page 8, line 33, leave out subsection (2) and insert— ("(2) Not more than one-fifth of the members of an overview and scrutiny committee or sub-committee of such a committee may be members of the authority's executive.").

§ The noble Baroness said: In moving this amendment, I wish to speak also to Amendment No. 147A. To an extent we are again the victims of groupings. The amendment covers similar ground to that covered by the noble Baroness, Lady Hanham. Nevertheless, as I have the opportunity, I shall once again make the point that we are not happy with the proposed complete divide between the executive and the overview and scrutiny functions. Amendment No. 143 suggests that, rather than having a complete demarcation between the 114 two, a limit should be written into the Bill. Amendment No. 143 provides that up to one-fifth of the members of an overview and scrutiny committee or sub-committee may be members of the authority's executive. I accept that that fraction was plucked out of the air. It is not a large fraction.

§ In suggesting a limit, I make the point again that we believe that some overlap would be valuable. To have no overlap at all risks losing flexibility, future effective changes in the role of individual councillors, individual development—by that I mean the development of the experience of individual councillors—and cross-fertilisation between different parts of the local authority.

§ Amendment No. 147 refers to the question of the chairing of the committee and seeks to obtain assurances from the Government that guidance, which is the subject of the clause, will include chairing in its provisions for operation. I raise this issue because the comment has been made to me from a number of quarters that the what I might call more old-fashioned authorities may well put in place as chair of the new executive and scrutiny committee a member who regards himself or herself as a member of the controlling group who may merely continue the current unsatisfactory practices which the Bill seeks to remove. I refer to a lack of openness and to a too cosy set-up. I am concerned that if the chair is a member of the majority party, where the chair sees the primary loyalty as being to a party rather than to the public service, the existing position will simply be reinforced.

§ The amendment does not state that the chair must be a member of another party. After all, in some authorities there is only one party. It does not seek to provide that there should be no such committee if that is the case. Government guidance would be valuable in giving the public and the opposition material to use when arguing against any such proposal from the majority group, which, as I say, may simply reinforce current bad practices and not move forward under the new agenda set by the Government. I beg to move.

§ Lord Whitty
I am afraid that this is just a further move to dilute the general clarity of distinction that we want to achieve through the Bill between the scrutiny role and that of the executive. The position is not altered by the fact that the amendment provides for a maximum number. A size restriction does not detract from the fundamental principle; namely, that we do not consider it sensible for an executive member to be allowed to sit on a committee that is charged with scrutinising that executive. I therefore cannot accept Amendment No. 143.
Amendment No. 147A would be slightly altered by government Amendment No. 147, which, so far as concerns the regulation-making power, would delete the reference which it amends. As we have not reached that amendment in terms of ordinal progression, it is slightly difficult for the noble Baroness to take that on board when referring to the amendment in this group. If the noble Baroness is, broadly speaking, happy with Amendment No. 147, Amendment No. 147A cannot stand.
115 I should point out also that the question of chairing, covered by the amendment, is, par excellence, a matter for the local council. It should not be regulated or heavily defined in guidance. Therefore, even if the noble Baroness were able to reformulate the amendment, taking account of the fact that, as I hope, the Committee is about to accept Amendment No. 147, it would not be appropriate to pursue it.

§ Baroness Miller of Chilthorne Domer
Before my noble friend replies, perhaps the Minister will clarify a point regarding Amendment No. 143. If executive members have portfolios that go wider than the traditional committee line, as many people are interested in developing—so that, for instance, an executive member has a portfolio for social inclusion work—may that person be a member of a scrutiny or overview committee dealing with some of the functions included in that portfolio?. My noble friend spoke about cross-fertilisation. The Government's model is too rigid. It envisages that executive members will have exactly the same lines of definition for their portfolios as the scrutiny overview committee. I thought that the Bill envisaged a more flexible possibility.

§ Lord Whitty
The noble Baroness confuses the issue somewhat. Under the Bill, a councillor could not sit on any scrutiny committee overseeing an executive function for which that councillor was responsible. That applies across the board, with a clear distinction between the executive as a whole and the scrutiny committees as a whole. The definition of "portfolio" is not a relevant issue. A councillor cannot be both an executive member and scrutinise that executive function. That needs to be clear.
We wish to have broader portfolios and more innovative structures that will lead to more joined-up local government. We also want to see some interaction. The clear separation of membership does not represent a barrier to interaction. There will be continuous interaction between the executives as a whole and the overview and scrutiny committees as a whole. The noble Baroness referred, for example, to the memorandum submitted by John Stewart. That kind of interaction will take place, and will do so on a broader range of policy strategy than has been the case with the compartmentalised committee structures in many traditional local authorities. We shall not achieve those objectives by relaxing the general distinction between the executive and the scrutiny functions.

§ Baroness Hamwee
I am sad that the Minister did not seek to answer the substance of my comments on the second of the two amendments in this group. I am among the first to support the idea of local authorities organising their own affairs. I chose my wording as delicately as I could in referring to some old-fashioned authorities. However, there is genuine concern that the new mechanisms should not simply reinforce old bad habits. We may well return to the point at the next stage. In the mean time, I beg leave to withdraw the amendment.

116

§ Amendment, by leave, withdrawn.

§ Lord Whitty moved Amendment No. 144: Page 8, line 33, after ("authority") insert (", or a sub-committee of such a committee,").

§ The noble Lord said: I have already spoken to Amendments Nos. 144 and 145. I beg to move.

§ On Question, amendment agreed to.

§ Lord Whitty moved Amendment No. 145: Page 8, line 34, at end insert— ("(2A) An overview and scrutiny committee of a local authority, or any sub-committee of such a committee, may include persons who are not members of the authority, but (subject to subsection (2C)) any such persons are not entitled to vote at any meeting of such a committee or sub-committee on any question which falls to be decided at that meeting. (2B) An overview and scrutiny committee of a local authority, or a sub-committee of such a committee, which has functions in relation to any education function which is the responsibility of the executive must include persons appointed—

(a) to represent parent governors at maintained schools in the authority's area, and
(b) to represent persons who appoint foundation governors for voluntary schools in the authority's area.

(2C) Any person appointed to an overview and scrutiny committee or sub-committee by virtue of subsection (2B) is to be entitled to vote at any meeting of the committee or sub-committee on any question which relates to any education function mentioned in that subsection and which falls to be decided at the meeting. (2D) An overview and scrutiny committee of a local authority, or a sub-committee of such a committee, is to he treated—

(a) as a committee or sub-committee of a principal council for the purposes of Part VA of the Local Government Act 1972 (access to meetings and documents of certain authorities, committees and sub-committees), and
(b) as a body to which section 15 of the Local Government and Housing Act 1989 (duty to allocate seats to political groups) applies.").

§ On Question, amendment agreed to.

§ [Amendment No. 146 not moved.]

§ The Deputy Chairman of Committees (Baroness Serota)
If Amendment No. 147 is agreed to, I cannot call Amendment No. 147A.

§ Lord Whitty moved Amendment No. 147: Page 8, line 41, leave out subsections (5) and (6) and insert— ("( ) In this section— foundation governor" and "voluntary school" have the same meaning as in the Education Act 1996, maintained school" and "parent governor" have the same meaning as in the School Standards and Framework Act 1998.").

§ On Question, amendment agreed to.

§ [Amendments Nos. 148 to 150 not moved.]

§ Clause 15, as amended, agreed to.

117

§ Lord Whittymoved Amendment No. 151: After Clause 15, insert the following new clause—

§ ACCESS TO MEETINGS AND INFORMATION ETC

§ (".—(1) The Secretary of State may by regulations make provision—

(a) with respect to the access of the public to meetings of executives or committees of executives (including provision enabling such meetings to take place in private),
(b) for or in connection with requiring written records to be kept of decisions made, or other action taken, by executives, or members or committees of executives, in connection with the discharge of functions which are the responsibility of executives,
(c) for or in connection with requiring written records falling within paragraph (b) to include reasons,
(d) for or in connection with requiring written records falling within paragraph (b) to be made available to the public,
(e) for or in connection with the creation of offences in respect of any rights or requirements created or imposed by the regulations.

§ (2) The provision which may be made by virtue of subsection (1) includes provision which applies or reproduces (with or without modifications) any provisions of Part VA of the Local Government Act 1972.

§ (3) Nothing in subsection (2) affects the generality of the power under subsection (1).").

§ On Question, amendment agreed to.

§ The Lord Bishop of Blackburn had given notice of his intention to move Amendment No. 152: After Clause 15, insert the following new clause—

§ OVERVIEW AND SCRUTINY COMMITTEE: LOCAL

EDUCATION AUTHORITY

§ (" .—(1) This section applies to a local authority which is a local education authority.

§ (2) Each local authority to which this section applies shall have a single overview and scrutiny committee (referred to in this section as the relevant committee) appointed for the purposes described in section 15(1) solely in respect of the authority's functions as a local education authority.

§ (3) A relevant committee may require that any decision of the authority's executive shall not be implemented, or that implementation of it shall not continue, until it has been approved at a meeting of all the councillors of the authority at which a report of the relevant committee on the decision in question was considered.

§ (4) Where any maintained school in the authority's area is a Church of England school, the relevant committee shall include at least one full voting member nominated by the Diocesan Board of Education for a diocese of the Church of England which includes all or part of the authority's area.

§ (5) Where any maintained school in the authority's area is a Roman Catholic school, the relevant committee shall include at least one full voting member nominated by the bishop of a Roman Catholic diocese which includes all or part of the authority's area.

§ (6) The Secretary of State may issue directions to local authorities for the purposes of securing as members of a relevant committee representatives of those who appoint foundation governors for schools designated under section 69 of the School Standards and Framework Act 1998 as having a religious character but which are not Church of England schools or Roman Catholic schools.

§ (7) Regulations may require the relevant committee for each authority to include one or more persons elected, in accordance with regulations, as representatives of parent governors at maintained schools in the authority's area.

118

§ (8) Expressions used in this section shall. unless the context otherwise requires, be construed in accordance with the Education Acts.").

§ The right reverend Prelate said: In the light of the Minister's earlier reply I shall not move the amendment at this stage.

§ [Amendment No. 152 not moved.]

§ Clause 16 agreed to.

§ Schedule 1 [Executive arrangements: further provision]:

§ Lord Whittymoved Amendment No. 153: Page 44, line 6, leave out ("under which the executive takes the form specified in section 10(2)") and insert ("which provide for a mayor and cabinet executive").

§ The noble Lord said: With the leave of the Committee, perhaps I may move Amendments Nos. 153 to 162 en bloc.

§ Lord Williams of Elvel
Does my noble friend intend to move these amendments? If so, will he stand up rather than speak from a sedentary position?

§ Lord Whitty
I shall oblige my noble friend. I spoke to Amendments Nos. 153 to 165 with Amendment No. 59. I intend to move Amendments Nos. 154 to 165 en bloc. I beg to move Amendment No. 153.

§ On Question, amendment agreed to.

§ Lord Whitty moved Amendments Nos. 154 to 165: Page 44, line 11, leave out ("as his deputy"). Page 44, line 11, at end insert ("to be the deputy mayor of the executive"). Page 44, line 11, at end insert— ("(4) Subject to sub-paragraph (5), the deputy mayor of the executive, unless he ceases to be a member of the authority, is to hold office until the end of the term of office of the elected mayor. (5) The elected mayor may. if he thinks fit, remove the deputy mayor of the executive from office. (6) Where a vacancy occurs in the office of deputy mayor of the executive, the elected mayor must appoint another person in his place. (7) If for any reason the elected mayor is unable to act or the office of elected mayor is vacant, the deputy mayor of the executive must act in his place. (8) If for any reason—

(a) the elected mayor is unable to act or the office of elected mayor is vacant, and
(b) the deputy mayor of the executive is unable to act or the office of deputy mayor of the executive is vacant,

the executive must act in the elected mayor's place or must arrange for a member of the executive or the authority to act in his place."). Page 44, line 14, leave out ("under which the executive takes the form specified in section 10(3)") and insert ("which provide for a leader and cabinet executive"). Page 44, line 23, leave out ("under which the executive takes the form specified in section 10(4)") and insert ("which provide for a mayor and council manager executive"). Page 44, line 25, leave out ("as his deputy"). Page 44, line 25, leave out ("who is neither") and insert ("to be the deputy mayor of the executive. (2A) The deputy mayor of the executive may not be—"). Page 44, line 26, after ("vice-chairman") insert ("of the authority"). 119 Page 44, line 27, at end insert— ("(2B) Subject to sub-paragraph (2C), the deputy mayor of the executive, unless he ceases to be a member of the authority, is to hold office until the end of the term of office of the elected mayor. (2C) The elected mayor may, if he thinks lit, remove the deputy mayor of the executive from office. (2D) Where a vacancy occurs in the office of deputy mayor of the executive, the elected mayor must appoint another person in his place. (2E) If for any reason the elected mayor is unable to act or the office of elected mayor is vacant, the deputy mayor of the executive must act in his place. (2F) If for any reason—

(a) the elected mayor is unable to act or the office of elected mayor is vacant, and
(b) the deputy mayor of the executive is unable to act or the office of deputy mayor of the executive is vacant,

the council manager must act in the elected mayor's place."). Page 44, line 28, at beginning insert ("Subject to subparagraph (3A),"). Page 44, line 31, at end insert— ("(3A) The council manager is entitled to attend, and speak at, meetings of an overview and scrutiny committee or sub-committee of the authority only if invited or required to do so by the committee or sub-committee."). Page 45, line 8, at end insert— ("5.—(1) The Secretary of State may by regulations make provision for or in connection with the appointment of a person (an "assistant") to provide assistance to an elected mayor. (2) Regulations under this paragraph may include provision with respect to the terms and conditions of appointment of an assistant. (3) Nothing in sub-paragraph (2) affects the generality of the power under sub-paragraph (1). (4) In this paragraph "specified" means specified in regulations under this paragraph.").

§ On Question, amendments agreed to.

§ Schedule 1, as amended, agreed to.

§ 5.30 p.m.

§ Clause 17 [Absence of requirement for political balance]:

§ On Question, Whether Clause 17 shall stand part of the Bill?

§ Baroness Hamwee
I should like to put one short question on Clause 17. The clause provides that it is not necessary 1.o have political balance on a local authority executive or a committee thereof. If so, can an elected mayor choose to be supported by a cabinet in effect that bears no resemblance to the political balance of the elected council? I make a point against my own party. It is not unknown for some Liberal Democrats not to get on with party colleagues as well as they might. I daresay that that is replicated in all parties. It is possible that there is a Liberal Democrat majority on a council and a Liberal Democrat mayor but that individual finds greater identity of view, or fewer difficulties of personality, with members of another party. Therefore, the administration may not reflect the council as elected. I believe that that is correct but I should be glad to have the Minister's view. It would take a fairly daft leader to do that on the basis of the leader and cabinet model, but such has 120 been known. One can imagine the mayhem if an elected leader chose an executive from a minority party.

§ Lord Whitty
The understanding of the noble Baroness is correct. In those circumstances, the Act will not lay down the requirement that there be political balance, or that the leader must necessarily draw his or her executive from either a politically balanced council or his or her own party. I do not know what deep anxieties within the Liberal Democrat Party are reflected by the possibility of any alternative. Perhaps I should not inquire in case the question is returned to me. The principle behind the clause is that in these circumstances there should be flexibility and the composition of the executive is not politically defined.

§ Clause 17 agreed to.

§ [Amendments Nos. 166 and 167 not moved.]

§ Clause 18 [Proposals]:

§ [Amendments Nos. 168 to 170 not moved.]

§ Lord Lamingmoved Amendment No. 171: Page 9, line 13, leave out paragraph (b) and insert— ("(b) ensure they deliver both value for money and quality standards of service").

§ The noble Lord said: I shall be brief in moving Amendment No. 171. I am sure that the Committee does not want me to rehearse the points I made at Second Reading. I regard certain parts of this Bill as a continuation of the process of centralisation. For many years there has been an increase in central control over local government. Clause 18 accentuates the power of central government even to determine the structures to be used by local authorities. There are more than 400 local authorities in this country where populations range from 30,000 to over 1 million. Yet each local authority will be required to submit to the Secretary of State proposals to manage its business. Earlier the noble Lord, Lord Dixon-Smith, indicated his concern, shared by many of us, about ensuring that good, capable people put themselves forward to be elected as members of local authorities. I believe that requirements of this kind will deter such people if they believe that local government is becoming more and more an agent of central government.

§ Central government has established through the best value initiative a powerful method to evaluate performance, and I applaud the excellent work that has been done under it. A methodology has been established whereby it is possible to judge performance against both value for money and quality of service delivered. A number of interesting developments are taking place, including joint reviews of local authorities, to look not so much at the process but the impact of local government achievements. Surely, it is that about which we should be concerned. I beg to move.

§ Baroness Miller of Chilthorne Domer
We on these Benches have some sympathy with the sentiments expressed by the noble Lord, Lord Laming. In 121 particular, of all the matters that a local authority may be required to do when it draws up proposals for the operation of executive arrangements, Clause 18(1)(b) is perhaps one of the least important. It might have said that the matter should be debated by the full council, or that the council should ensure that the arrangements fulfilled what one would like to see as the principal purposes under Clause 2(1) and those things that the council should be doing, which the amendment moved by the noble Lord, Lord Laming, also seeks to achieve. However, to write onto the face of the Bill that one of the important duties of the council is to send a copy of the proposals to the Secretary of State is a centralist sentiment. I do not believe that that is the central issue to be addressed once the local authority has drawn up its proposals. Clause 18(3) provides that, a local authority must take reasonable steps to consult local government electors, and other interested parties". I would have thought that that was far more important than informing the Secretary of State.
If the object of the Secretary of State seeing the proposals is to ensure that, for example, the executive's balance of functions is about right in order to fulfil the purposes outlined in Clause 2, it is reasonable to have the views of the local population as to the fulfilment of that function. I do not believe that the local electorate would have an enormous interest in whether or not the executive arrangements were of one kind or another until it had seen them in operation for a period. But I understand the point to which the noble Lord is moving with his amendment. I shall be interested to hear from the Minister why it is of particular importance that this matter is on the face of the Bill.

§ Baroness Farrington of Ribbleton
Amendment No. 171 replaces a requirement on authorities to send their proposals to the Secretary of State with a requirement that authorities should deliver value for money and quality standards of service. The Government have no problem with the localist sentiment behind the amendment of the noble Lord, nor with the laudable objectives of value for money and quality standards of service which the amendment proposes. We support the view that that requirement should be placed on authorities. The Government are keen to see a great diversity of practice emerge under this Bill and best value legislation is already in place. As the noble Lord said, some striking examples of good practice are emerging.
However, we would be concerned about striking from the Bill the requirement on an authority to send to the Secretary of State a copy of its proposals. This is not an approval mechanism. It is in place so that Government can have a picture of what is occurring and the progress being made. We want to see efficient, transparent and accountable local government and we believe that it will be delivered through the establishment of new executive arrangements with a separate accountable executive. We therefore naturally want to be able to monitor what is going on 122 and a simple duty on local authorities to send copies of their proposals to the Secretary of State seems an eminently sensible way to proceed.
The Bill includes the power, therefore, in Clause 23 to require a referendum in circumstances to be prescribed in regulations. A draft of those is at page 141 of the package of draft guidance and regulations made available recently to the House. The circumstances expressed in general terms include where the timetable for implementation of proposals is very protracted, where reasonable steps have not been taken to consult openly in developing those proposals, and where the authority does not implement in line with the stated timetable in those proposals. Such a power is necessary to ensure that the actions taken locally reflect what local people want—here I agree with the noble Baroness, Lady Miller of Chilthorne Domer—and that those wishes are put in place. I can reassure the noble Baroness that there is nothing sinister in this. The power to intervene is a fall-back power to deal with situations of inertia or abuse. But the power cannot operate if authorities are not required to send to the Government a copy of their proposals.
The Government cannot accept this amendment as drafted, therefore, but would be happy to consider how provision on the basis of the noble Lord's amendment might be included in the Bill in addition to the current wording of Clause 18(1). On that basis, I hope that the noble Lord will be content to withdraw his amendment.

§ Lord Laming
I am grateful to the noble Baroness, Lady Miller, for her support. If I may say so, she expressed the issue somewhat better than me, and I am grateful.
I am grateful to the Minister for that constructive and helpful reply on the basis of which I am happy to beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Whitty moved Amendment No. 172: Page 9, line 17, leave out (" 11(1)(b)") and insert ("11(2)(b)").

§ On Question, amendment agreed to.

§ Lord Whitty moved Amendment No. 173: Page 9, line 18, leave out ("subject of the executive arrangements") and insert ("responsibility of the executive").

§ On Question, amendment agreed to.

§ 5.45 p.m.

§ Baroness Hamwee moved Amendment No. 173A: Page 9, line 21, at end insert ("and representatives of officers of the local authority").

§ The noble Baroness said: Grouped with Amendment No. 173A is a number of amendments. It may be for the convenience of the Committee if I speak to the first amendment in the group but speak to my amendments to the Minister's amendment only after he has spoken to his amendment. The grouped 123 amendments are Amendments Nos. 173 to 176, 178, 179 to 182, 186, 187, 189, 195 to 198, 243, 252, 253 and 370.

§ Amendment No. 173A proposes that representatives of officers of the local authority shall be included in those who are consulted when a local authority draws up its proposals with respect to executive arrangements. Clause 18(3) provides, quite properly, that a local authority must take reasonable steps to consult local government electors and other interested persons. The Minister may tell me that officers of the authority come within that latter category. However, I believe that they have not only a specific interest but a contribution to make because of their experience.

§ I spoke earlier of the difficulties that I foresee for officers. There may be considerable tensions for officers who seek to serve effectively and impartially the administration, members of the opposition, an executive and members of an overview and scrutiny committee. The officer structure required for the proposals deserves careful consideration. Officers should be in a position formally to comment on them.

§ Other noble Lords in different parts of the country will be aware that, increasingly, chief executives and senior managers tend to leave a local authority following a change in political control. We were not accustomed to that 10 or 15 years ago. It illustrates the difficulties that follow from the close relationship that senior officers have with the senior members of an authority.

§ Officers will have responsibilities to deal with the probing of the overview and scrutiny committee. They must be clear about the separation of responsibilities and accountabilities between the staff serving the executive and those serving the overview and scrutiny committee. Consideration must be given to the support provided to the latter through background papers, framing questions and progress chasing; and consideration of the extent to which a member of an overview and scrutiny committee should be assisted, or briefed, in challenging the decisions made by an executive member. Where do loyalties lie?

§ Those difficulties could impact adversely on the member-officer relationship. If there is an overemphasis on informality, back benchers may feel excluded. If relatively junior officers—they may not have a great deal of experience of dealing with elected members—are not helped to develop their political awareness, they could fail to provide the support which members may require. One can anticipate the frustration of members and the difficulties of officers.

§ I take my comments from a paper by an academic on concerns that might arise and could describe them at greater length. I shall not do so tonight but return to the thrust of the amendment. It should be recognised that officers have a place in the consultation leading to the decision on executive arrangements and, the converse, on the overview and scrutiny arrangements they serve. I beg to move.

§ Lord Dixon-Smith
Clause 21(5) provides for the possibility of changing from an elected mayor type of 124 executive to another type. I recall passionate debates between the Minister and my noble friend Lady Miller of Hendon about a recall of the London mayor, but this is not quite that situation. If there were a referendum on changing from an elected mayor, it would be a vote of no confidence in either the mayor or the executive serving with the mayor. We are on delicate ground, to say the least.
Say that such a referendum, which would presumably be the result of an appeal to the Minister, produced a negative result and the authority were required to change its executive arrangements. As that would in effect be a vote of no confidence by the people who put the elected mayor in place, the Bill could produce an awkward situation. If such a thing happened, the mayor would remain until the end of his term of office—which might be two years away or more. That would not be satisfactory, so our Amendment No. 195 would require an elected mayor, after such a referendum, to retire after the council's next annual meeting—which seems a reasonable way of proceeding in the circumstances. Amendment No. 243 flows automatically.
Any local authority that found itself in the situation that I have described would have considerable difficulty understanding why the system that it had voted against had to continue so long. I hope that the Minister will look at that matter with care. The Bill is not satisfactorily drafted and if the Minister thinks about it seriously, he would not regard it as completely satisfactory either.

§ Lord Whitty
Amendments Nos. 174 to 176 provide for the Secretary of State to give directions on certain aspects of the preparation and content of proposals drawn up by local authorities. They will allow us to be more specific about the key elements included and permit the Secretary of State to specify the level of detail that the executive arrangements should include. That is necessary to ensure that authorities adopt constitutions that genuinely reflect the views of local people on how future relationships should be structured.
Amendment No. 178 provides that when an authority sends proposals to the Secretary of State, they should be accompanied by an account of how the consultation had been conducted in drawing up the proposals and the outcome of the consultations. The Secretary of State, in noting proposals, would need to be assured that adequate consultation had taken place with the electorate.
Amendment No. 173A from the noble Baroness, Lady Hamwee, deals with consultation with council officers. We expect local authorities to engage in proper consultation with their officers and the trade unions representing them. That is good practice, particularly when faced with significant changes in the way the council conducts its business. It is important that councils involve their employees, particularly senior employees, in reaching decisions as a matter of general involvement of their staff. We have detailed guidance suggesting that they do just that. Clause 18 will ensure that consultation is with 125 those who will be governed by the local authority in future. Council employees are in a different category, unless they also happen to be electors in the authority's area. We do not believe that we should statutorily lay down an equivalent industrial relations duty to the constitutional duty to consult local electors on how the new structure should be introduced. By the time the proposals are put to the electorate, it is unlikely that they will be a surprise to council officers—who should already have been involved.
Amendment No. 178 provides a new power for the Secretary of State to specify a deadline by which all authorities or authorities of a particular type must submit proposals. I hope that that reserve power will be used infrequently or not at all, but it is necessary to emphasise that we require all authorities to assess which executive structures they wish to recommend to their electorate and to consult them. We will use that power only if a significant number of authorities do not work actively to observe the timetable.
Amendment No. 179 inserts a new clause after Clause 18. There is nothing mysterious about that new clause, which simply plugs a small gap in the Bill so that authorities that propose a form of executive that does not require a referendum cannot delay its implementation beyond the originally proposed timetable. It provides a more useful definition of "executive" for which a referendum is required. Amendments Nos. 180, 181, 182 and 187 are minor.
We have brought forward substantive Amendments Nos. 182 and 187 in particular as a direct response to the recommendation of the Joint Committee chaired by the noble Lord, Lord Bowness, which considered a draft of the legislation. That committee recommended more clarity for local authorities and the local electorate about the options available following a referendum defeat. The amendments provide that clarity and will require a local authority proposing a form of executive for which a referendum is required to produce an outline fallback position before sending the main proposals to the Secretary of State before the referendum. Outline fallback proposals should give a clear indication of the arrangements that the local authority proposes to introduce and the timetable, subject to consultation. Similar provisions have been included for referendums following, for example, a petition or direction under Clause 23 in the draft Local Government (Petitions and Referendums) Regulations which we have made available to the Committee.
Amendment No. 197 also deals with fall-back provisions. The new clause would allow the Secretary of State to specify arrangements for the discharge of functions which do not involve an executive, but which the Secretary of State thinks are likely to ensure that decisions are taken in an efficient and accountable manner. These arrangements must be—as has been remarked upon earlier in Committee—significantly different from current arrangements. They must be significantly different because they must not be precisely the same as those considered at earlier stages.
126 That will ensure that a council could not continue with the traditional committee structure, but provides a wider range of options to councils in the event that, having gone through the assessment of the structures provided by the Bill, the electorate rejects proposals for an elected mayor in a referendum.
Perhaps I may make one point absolutely clear in this context. Alternative arrangements under this clause will be available only as fall-back arrangements. Local authorities will not be able to adopt those alternatives as proposals they positively put to a referendum. Moreover, it is the view of the Government that it is unlikely that arrangements without a separate executive can significantly enhance the efficiency, transparency and accountability which form the objectives of the Bill. We therefore believe that there are unlikely to be many—if any— circumstances where it would be right to provide for alternative arrangements under this new clause. However, we wish to cover this eventuality in order not to exclude possible innovative structures in the event of the preferred option being rejected in a referendum.
If an authority adopts alternative arrangements following a referendum defeat, then the new clause in Amendment No. 198 provides for the adoption and operation of those fall-back arrangements. This new clause also allows the Secretary of State to make regulations enabling local authorities to alter the alternative arrangements they have in place or to move from them to executive arrangements.
For those authorities operating executive arrangements, Amendment No. 196 introduces a new clause in place of the original Clause 21. That clause deals with changing or moving to different executive arrangements. This substitute clause does away with the rather complex provisions of the original clause and provides instead for a regulation-making power. That will enable the Secretary of State to make comprehensive regulations.
Amendment No. 252 makes a minor amendment to the power to make regulations regarding the conduct of referendums. Amendment No. 253 makes another minor amendment to this power so that it is clear that the regulations can provide for publicity material about what would happen if a referendum is lost.
That concludes my rundown of government amendments. Because the noble Lord, Lord Dixon-Smith, has already moved his substantive amendments, it would be courteous for me to reply to him at this stage, although there may be points that other noble Lords wish to raise in the debate. I am afraid that I must oppose both amendments. The Government do not believe, as would be required by Amendment No. 195, that it is right for a council which is in the process of operating arrangements with an elected mayor to be able to alter to a form of executive arrangements without an elected mayor before the end of the term of office for the mayor.
The noble Lord advanced arguments as to why that should be allowable or possibly mandatory, but in all other circumstances, except in those cases where— without wishing to go over old ground—other 127 administrations have terminated the existence of authorities, it has normally been the case that the current term of office would remain in place until any change to the status of the authority came into effect. It would therefore be expected that when a mayor was elected, that mayor would be elected in the belief that he or she would serve a full term of office. Even though alternative proposals may have been advanced within that term of office, it is reasonable for both the authority and the electorate to presume that the term of office of the mayor would be concluded. For that reason, we would not wish to see new arrangements being brought into force before the end of that term. I shall not be able to accept the amendments of the noble Lord and I hope that he will not press them.
I may need to return to certain other points, but I hope that noble Lords will take into account what I have said.

§ 6 p.m.

§ Lord Harrison
In rising to contribute to the debate introduced by Amendment No. 173, perhaps I may take this opportunity to declare an interest. For almost a decade I was a member of Cheshire County Council. I can well remember that when I first joined the council I was told about the good old clays when all the business on council day was concluded by lunchtime and everyone then went off for a jolly good meal. However, in my years as a member, the reverse took place. Great efficiency was shown by the introduction of an early lunch, but not much in the way of accountability or transparency. That was because there seemed to be a proliferation of county council committees of one kind or another in which we dealt in hesitation, deviation and repetition of the council's business. While we certainly had accountability and transparency, I am not sure that we were always guided by efficiency. Indeed I learnt well the longueurs of local government during those nine years, longueurs that I know will never be repeated in this House.
I support very much the Government's approach in saying that no change is not an option in the Bill. The proposed change of creating a divide by introducing an executive and having that mirrored by scrutiny committees has been attacked from all sides. However, perhaps I may put one reflection to the Committee. The notion that the role of a scrutineer is in some way demeaning is, I believe, wrong. After all, is not the larger purpose of much of the work of your Lordships' House in the way of scrutiny? None of us feels demeaned by performing that duty.
I am pleased that the Bill states decisively that no change is not an option and that when that happens there should be a speedy application of the new constitutions in local government. Later amendments moved by my noble friend give effect to that. May and June 2002 are the dates given for when the changes should happen. That will also be around the time that the euro —the single currency—will appear in notes and coins. That in itself will have—although I shall whisper this—implications for local government.
128 Amendments Nos. 174 and 176 specify more precisely the areas for consultation when the proposals are developed. That is right and proper. I listened carefully to the proposals of the noble Baroness, Lady Hamwee, on officers and in other areas on consultation. I believe that the heart of the noble Baroness is in the right place on this issue, but as regards officers—anyone who has had experience of local government will know this—it is absolutely essential that relationships between members and officers are of the best in terms of sharing information on the various ways forward. The idea of needing legislation to enable this to happen would serve only to cover a deficiency because such close co-operation and contact should already be in place.
I believe that some of the other amendments which are to be moved, including those of the noble Baroness, Lady Hamwee, are covered by some of the amendments tabled by the Minister, are superfluous or suggest a second referendum in terms of consultation, which I am not sure is a purposeful way forward.
I move to the question of the referendum being binding. As it is a point which may not otherwise arise, I should like to make it. It is important to state that any referendum result is binding on the local authority. There is no greater way to induce cynicism among the electorate than to fail to move forward and oblige the result of a referendum to be put in place.
Perhaps I may ask the Minister about fall-back. I am pleased to see that the government amendments to Clause 19 clearly set out the options available to councils after a referendum defeat. The Government's response to the Joint Committee and the draft guidance each mention that the fall-back position needs approval by the Secretary of State. However, I cannot find any such provision in the government amendments, and I ask my noble friend to comment.
Finally, I believe that it is right to make clearer to the public what we suggest in terms of fall-back. In a sense, the first-line proposals, complemented by the fall-back position as sketched in outline, offer choice to the electorate in knowing that there is a fall-back position. Secondly, although we talk in terms of an outline fallback position, the amendments suggested by the Minister impose on the authority a clear indication of what is proposed and also the timetable. Those are all appropriate amendments to the Bill. In conclusion, fall-back is not an excuse for local authorities to "fall out" of the responsibility which they bear to a modern electorate.

§ 6.15 p.m.

§ Baroness Hamwee
The Minister commented on my Amendments Nos. 173A and 178A, describing them as some kind of industrial relations duty. I did not propose the amendments in that sense but simply sought to make the point that I believe that officers will have a real contribution to make to the likely operational success of whatever proposals are put before an electorate. Of course, the best authorities may well have been closely involved in the proposals. However, we are seeking to provide not only for the best authorities.
129 I turn to the other amendments in my name. Amendment No. 182A asks: what if? Clause 18 requires proposals to be drawn up to a timetable. Clause 20 requires the resolution of a local authority to operate executive arrangements. Amendment No. 182A asks: what if there is no such resolution; for example, because control of the authority has changed or some members have changed their minds?
Amendment No. 183 asks (at least, between the lines) how in the real world a local authority can consult on alternative proposals for its preferred version at the same time as the referendum. If a local authority were to vote in a referendum against the proposals, it would appear that one was picking one arrangement. However, it may be that the electorate likes neither the proposal nor the fall-back arrangement which is on offer. I confess that I have some difficulty in envisaging how such a referendum, as currently proposed by the Government, would operate.
Amendment No. 198 pursues the point further by proposing that a local authority may not implement detailed fall-back arrangements until it has held a referendum on those arrangements. As I said, that those arrangements were known in outline at the time of a referendum on whether or not there should be a mayor does not seem to me to amount to approval of the fall-back arrangements.
I turn to the amendments which I have tabled to the Minister's Amendment No. 196. Amendment No. 196A is consequential to Amendment No. 196C. Amendment No. 196B seeks to leave out subsection (2)(b) of the proposed new clause which requires the consent of an elected mayor to the operation of different arrangements. I question whether it is appropriate to require a referendum to create the post of mayor and then put the individual who is elected in a kind of self-perpetuating position; that is, whoever is in post as mayor must give consent to the introduction of different arrangements. Amendment No. 196C, which aims to add another provision at the end of the clause, would permit a move to non-executive arrangements. I know the Minister's answer to that point.
I turn to Amendment No. 198A. The Minister's Amendment No. 198 provides at subsection (3) that a local authority which passes a resolution to operate alternative arrangements subsequently may not cease to operate those arrangements. I propose the amendment because I want to ask: why not?

§ Lord Whitty
I shall endeavour to answer those points. First, in response to my noble friend Lord Harrison, I agree completely with what he said. However, I must point out, as does my noble friend Lord McIntosh from the Dispatch Box, that my agreement with my noble friend Lord Harrison does not imply any change in the Government's position to the euro.
With regard to the more relevant aspects of his contribution, I agree absolutely about the reference to referendums being binding. The legislation should be 130 clear that they are binding and that point is currently covered in a combination of the Bill and the guidance. Clause 19 deals with the point. I believe that it provides the right balance. However, if there is any doubt, we shall look at the matter again.
In relation to the question which my noble friend raised on the fall-back position and clearance of that with the Secretary of State, clearly it is important that we identify at what point the Secretary of State approves. My noble friend is quite right. I am glad that he has drawn our attention to that point and to the slight inconsistency which exists between the guidance and the White Paper and the submission to the Joint Committee. We are still considering what is the best process for the prior approval of the outline fall-back proposals which are not otherwise provided for. However, we are clear that the fall-back proposals must not include the status quo. That applies also to a number of the amendments to my amendments, which the noble Baroness, Lady Hamwee, is addressing. I assure my noble friend Lord Harrison that we shall return to the matter if we feel we need to at a later stage, making sure that we clarify what is the Secretary of State's role in those circumstances.
I shall now deal with the noble Baroness's amendments to my amendments. She has proposed Amendment No. 188 which appears to seek a requirement for a second referendum before an authority can implement detailed fall-back proposals. That is likely to increase rather than decrease the uncertainty. The Joint Committee asked us to try to increase the certainty in that regard. Therefore, we wanted to make sure that the government amendments are agreed to because they make clearer what is being put to the electorate.
Amendments Nos. 182A, 196A and 196B seek seriously to modify the principle that the status quo cannot be maintained. Amendment No. 182A seeks to provide a way for the local authority to get round the fact that the status quo is not an option. It would allow local authorities to implement their proposals by not passing a resolution under Clause 20 and they would not therefore be required to alter to an executive-based structure. Clause 19 makes it clear that in all circumstances a referendum would be binding and if the referendum supported the proposals for an executive arrangement, the authority must implement that. If not, it must implement the fall-back. All of that would require change.
Amendments Nos. 196A and 196C seek to allow the Secretary of State to allow local authorities to abandon executive arrangements in favour of some other arrangements. Again, I presume that that includes the status quo or something like it. The Government believe that the executive arrangements are the best way to ensure the objectives of the Bill. Therefore, we do not believe it is right that a council which has adopted executive arrangements—which if they involve an elected mayor would have been approved by a referendum—should be able to abandon those arrangements and implement arrangements which do not provide for a separate 131 executive. Therefore, we do not believe that that fallback provision should be provided in the terms of the amendment.
Amendment No. 198A in the name of the noble Baroness seeks to allow the Secretary of State to enable local authorities to abandon alternative arrangements in favour of some other arrangements, again reintroducing the possibility of the status quo. For our part, that is not an option. That is why we have proposed that an authority operating alternative arrangements should be able to cease operating those arrangements only if it implements other executive arrangements in their place.
Amendment No. 196B seeks to prevent regulations which require the consent of the elected mayor if all executive arrangements which involve an elected mayor can be changed. I offer two reassurances in that regard. First, the Government do not propose that the mayor's consent would be required to change executive arrangements which relate only to overview and scrutiny arrangements. Secondly, we do not propose that the mayor's consent should be required to change from an executive arrangement involving an elected mayor to some other arrangement. That would have to be the subject of a referendum and the mayor should not and would not be allowed to veto the will of the people expressed through a referendum.
But we believe that it is not right for the council to be able to change the executive arrangements without the mayor's consent; for example, by deciding that some functions over which it has a choice and which are not mandatorily required to be the function of the executive by the Bill would no longer be executive functions. In that case, the mayor would have been elected to deliver a programme which might include those functions and if the council took them away from him, it would be able to undermine that programme. That would be undemocratic in a sense and, therefore, we should not wish to provide explicitly for that situation.
I hope that the Committee have followed my concerns about the amendments to the amendments even if they have forgotten what the original government amendment was intended to achieve.
As regards the first substantive amendment, I want to make it clear that when I referred to industrial relations duties in terms of consultation with staff I was in no way disparaging that. Industrial relations duties are of the very highest order. But they are not duties which should be provided in the constitutional section of this Bill which deals with the responsibilities of the council to its electorate.
With that explanation of the Government's view, I hope that the noble Baroness will not press her amendments.

§ Baroness Hamwee
Of course, I accept what the Minister said about relationships with staff.
This debate has left me with a very big question mark about what alternatives are on offer when a referendum is called. I shall certainly want to reflect on that because it seems to me that the Bill which the Government are promoting is so narrow in its prescriptions that the 132 referendum may be pretty much a sham because there will be so little flexibility and option on which the electorate can express a view.
Having said that, I beg leave to withdraw Amendment No. 173A.

§ Amendment, by leave, withdrawn.

§ Lord Whitty moved Amendments Nos. 174 to 176: Page 9, line 21, at end insert (", and (b) must comply with any directions given by the Secretary of State"). Page 9, line 23, at beginning insert ("such"). Page 9, line 23, leave out from ("arrangements") to end of line 26 and insert ("as the Secretary of State may direct").

§ On Question, amendments agreed to.

§ [Amendment No. 177 not moved.]

§ Lord Whitty moved Amendment No. 178: Page 9, line 30, leave out subsection (5) and insert— ("(5) A copy of proposals under this section which is sent to the Secretary of State must be accompanied by a statement which describes—

(a) the steps which the authority took to consult local government electors, and other interested persons, in the authority's area, and
(b) the outcome of that consultation and the extent to which that outcome is reflected in the proposals.

(6) The Secretary of State may by order specify a date by which every local authority, or every local authority falling within any description of authority specified in the order, must comply with this section.").

§ The noble Lord said: I beg to move.

§ [Amendment No. 178A, as an amendment to Amendment No. 178, not moved.]

§ On Question, Amendment No. 178 agreed to.

§ Clause 18, as amended, agreed to.

§ Lord Whitty moved Amendment No. 179: After Clause 18, insert the following new clause—